U.S. v. Sims, CR.00-193 MV.

• Citation: 220 F.Supp.2d 1222
• Decision Date: 28 August 2002
• Docket Number: No. CR.00-193 MV.,CR.00-193 MV.
• Parties: UNITED STATES of America, Plaintiff, v. Stanley Howard SIMS, Defendant.
• Court: U.S. District Court — District of New Mexico

220 F.Supp.2d 1222

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

No. CR.00-193 MV.

United States District Court, D. New Mexico.

August 28, 2002.

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

P. Jeffery Jones, Santa Fe, NM, for Michael Walker.

Linda Warren Sims, Carlsbad, NM, Pro se.

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 Judgment of Acquittal on Counts III and IV and Motion for New Trial on Counts I and II [Doc. No. 134]. The Court, having considered the motion, briefs, relevant law and being otherwise fully informed, finds that the motion will be GRANTED in part and DENIED in part.

BACKGROUND

Defendant Stanley Howard Sims was indicted on four counts by a grand jury for attempting to coerce and entice a minor to engage in sexual acts, traveling in interstate commerce for the purpose of engaging in sexual acts with a minor, transporting material involving the exploitation of minors, and receiving material involving the sexual exploitation of minors [Doc. No. 18]. This case was tried by a jury, which returned a verdict of guilty on all counts on November 16, 2001. During the trial, Defendant requested a jury instruction to advise the jury that the government had the burden of proving beyond a reasonable doubt that the visual depictions transported and received by Defendant actually involved real children. Upon the government's objection, the Court denied Defendant's request and found the government not to have any burden of proving that the depictions involved actual children.

After the jury verdict, the U.S. Supreme Court decided in Ashcroft v. Free Speech Coalition, ___ U.S. ___, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), that the Child Pornography Protection Act of 1996 ("CPPA") was overbroad and unconstitutional by prohibiting virtual child pornography. Defendant then filed this Motion for Judgment of Acquittal on Counts III and IV, renewing his argument that the government had the burden of proving that the sexual depictions at issue involved real children, while also bringing a Motion for New Trial on Counts I and II, arguing for the first time that the evidence admitted as to Counts III and IV improperly prejudiced the jury in its deliberation over Counts I and II. The Court held a hearing on Defendant's Motion on June 5, 2002, at which time it took the motion under advisement.

STANDARDS

In reviewing a motion for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, the Court must determine whether "viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt." United States v. Vallo, 238 F.3d 1242, 1247 (10th Cir.2001) (quotation omitted). "The jury, as fact finder, has discretion to resolve all conflicting testimony, weigh the evidence, and draw inferences from the basic facts to the ultimate facts." United States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir.1998) (citation omitted). However, the "evidence supporting the conviction must be substantial and do more than raise a suspicion of guilt," and a "conviction must not be obtained simply `by piling inference upon inference.'" Id.

"On a defendant's motion, the court may grant a new trial to that defendant if the interests of justice so require." Fed. R.Crim.P. 33. "Although a trial court is afforded discretion in ruling on such a motion, and is free to weigh the evidence and assess witness credibility, a motion for new trial is regarded with disfavor and should only be granted with great caution." United States v. Quintanilla, 193 F.3d 1139, 1146 (10th Cir.1999) (internal citation omitted).

DISCUSSION

I. Motion for Judgment of Acquittal on Counts III and IV

Defendant argues that the government has not met its burden of proving the elements of Counts III and IV (transporting and receiving material involving the sexual exploitation of minors) beyond a reasonable doubt in light of the U.S. Supreme Court's decision in Free Speech that the government must prove, as a requisite element, the use of actual children in the depictions of child pornography. Defendant contends that the government did not prove this element and, thus, judgment of acquittal is warranted as to Counts III and IV.

As a preliminary matter, the Court acknowledges the government's correct statement of the law that Defendant's failure to file a motion for judgment of acquittal prior to the seven-day deadline under Rule 29 would deprive the Court of jurisdiction to adjudicate this motion. See Carlisle v. United States, 517 U.S. 416, 421, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996) ("If ... a guilty verdict is returned, a motion for judgment of acquittal must be filed, either within seven days of the jury's discharge, or within an extended period fixed by the court during that 7-day period."); United States v. Stevens, 978 F.2d 565, 569 (10th Cir.1992) ("Because [the defendant] made his Rule 29(c) motion after the seven-day period and not within any court-authorized extension, the district court properly refused to hear that motion for lack of jurisdiction.").

However, the Court finds that Defendant is actually restating the same argument made during trial at the close of the government's case-in-chief, with the additional support of an intervening change in law. Consequently, Defendant's Motion for Judgment of Acquittal is more properly characterized as a motion to reconsider the Court's previous denial of Defendant's oral motion for judgment of acquittal during the trial, at which time the Court ruled that "it is not an element of the case, and therefore, not part of the Government's burden to establish beyond a reasonable doubt that [the people in the pornographic depictions] are, in fact, real children." (Transcript of Trial by Jury. CR No. 00-193, November 13-16, 2001 ("Trial Tr.") at 693.)

This Court previously has held that it "has the power to reconsider a timely motion for judgment of acquittal premised on insufficiency of the evidence when the court, which still retains jurisdiction of the case, decides ... that its earlier denial of the Rule 29 motion was erroneous." United States v. Bahe, 40 F.Supp.2d 1302, 1304 (D.N.M.1998) (quoting Arizona v. Manypenny, 672 F.2d 761, 765-66 (9th Cir. 1982)). Moreover, the Tenth Circuit has stated that "where the petition for reconsideration was filed by the defendant, the petition is timely if filed within ten days of the entry of judgment." United States v. Miller, 869 F.2d 1418, 1421 (10th Cir.1989) (citing Fed. R.App. P. 4(b)).

Defendant timely moved the Court to grant a judgment of acquittal at the close of the government's case-in-chief. Additionally, because the Court has not yet sentenced Defendant, judgment has not been entered in this case. See Fed. R.App. P. 4(b)(6) ("A judgment or order is entered for purposes of this Rule 4(b) when it is entered on the criminal docket."); United States v. Snell, 922 F.2d 588, 590 (10th Cir.1990) ("In a criminal case, a decision is not final until both conviction and imposition of sentence." (citations omitted)). Therefore, Defendant's motion to reconsider the Court's prior denial of his Motion for Judgment of Acquittal is properly before the Court.

The Court must now determine whether or not it correctly ruled that the government did not have the burden of proving beyond a reasonable doubt that the visual depictions involved actual children. In the Free Speech decision, the U.S. Supreme Court explicitly found the CPPA to be an unconstitutional infringement on First Amendment rights by including in the definition of "child pornography" "`any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture' that `is, or appears to be, of a minor engaging in sexually explicit conduct'" or that "was `advertised, promoted, presented, described, or distributed in such a manner that conveys the impression' it depicts `a minor engaging in sexually explicit conduct.'" 122 S.Ct. at 1397 (quoting 18 U.S.C. § 2256(8)(B), (D)). Because speech that "is neither obscene nor the product of sexual abuse ... does not fall outside the protection of the First Amendment," id., 122 S.Ct. at 1402, the U.S. Supreme Court found the CPPA to be overly broad by criminalizing virtual depictions.

The Court agrees with the government that the U.S. Supreme Court only addressed the definition of "child pornography" under 18 U.S.C. § 2256(8)(B), (D), which pertained to activities relating to material constituting or containing child pornography pursuant to 18 U.S.C. § 2252A.¹ Defendant, on the contrary, was charged with transporting and receiving material involving the sexual exploitation of minors pursuant to 18 U.S.C. § 2252,² which does not contain any reference to "child pornography." The Free Speech decision, therefore, does not directly affect the case at hand.

The government also correctly notes that Section 2252 itself requires as an element of the offense that the production "of such visual depiction involves the use of a minor engaging in sexually explicit conduct[,] and such visual depiction is of such conduct." 18 U.S.C. § 2252(a). Thus, even before the Free Speech decision, Section 2252 required that the visual depictions at issue involve the use of an actual minor engaging in sexually explicit conduct and that they depicted such conduct. Free Speech merely made this requirement applicable as well to Section 2252A, which contained the much broader term of "child pornography." As a consequence, the Court finds that it previously erred by ruling that the government did not have the burden of proving beyond a reasonable doubt that the visual depictions at issue involved real children.

With that error in...