U.S. v. Sirois

• Decision Date: 11 June 1996
• Docket Number: No. 1276,D,1276
• Citation: 87 F.3d 34
• Parties: UNITED STATES of America, Appellee, v. Robert David SIROIS, Defendant-Appellant. ocket 95-1547.
• Court: U.S. Court of Appeals — Second Circuit

Page 34

87 F.3d 34

UNITED STATES of America, Appellee, v. Robert David SIROIS, Defendant-Appellant.

No. 1276, Docket 95-1547.

United States Court of Appeals, Second Circuit.

Argued April 1, 1996.

Decided June 11, 1996.

Richard A. Reeve, Asst. Federal Public Defender, New Haven, CT, for Defendant-Appellant.

Leonard C. Boyle, Asst. United States Attorney, Christopher F. Droney, United States Attorney, District of Connecticut, New Haven, CT, for Appellee.

Before: OAKES, WINTER, and CALABRESI, Circuit Judges.

CALABRESI, Circuit Judge:

Robert Sirois photographed sexual activity involving teenage boys who had been transported from Connecticut to New York by their grade-school teacher. A jury found that his conduct violated 18 U.S.C. § 2251(a), the federal statute prohibiting child pornography. Sirois was also convicted of engaging in illegal sexual activity with one of the boys, in violation of 18 U.S.C. § 2422. He was, in addition, found guilty of conspiring with the schoolteacher to commit the foregoing crimes. Sirois argues that the jury charge was flawed in several respects, and he challenges the sufficiency of the evidence. Although Sirois raises some novel contentions, none of them has merit and we therefore affirm his conviction in all respects.

I. BACKGROUND

Viewing the evidence, as we must, in the light most favorable to the jury's finding of guilt, United States v. Martinez, 54 F.3d 1040, 1042 (2d Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 545, 133 L.Ed.2d 448 (1995) the evidence adduced at trial can be described as follows.

Gary Booth, a school teacher in East Hartford, Connecticut, regularly seduced young male students. Both Christopher Coupe and Thomas Miller were students in the East Hartford school system and came to know Booth while he taught at the Mayberry Elementary School. When Coupe was in ninth grade, Booth invited him to his rural home to "chop wood" and work around the house. During that visit, while Coupe was staying in the basement of his home, Booth plied him with alcohol and showed him pornographic movies. After gaining Coupe's confidence, Booth began to engage him sexually.

In 1989, Booth invited Coupe to join him on a weekend visit to his friend and former student, Robert Sirois. Sirois, then twenty-eight years old, lived in Hyannis, Massachusetts. After Sirois's wife and children retired to their rooms, Booth, Sirois, and Coupe went to a computer room in the back of the house. There, Booth supplied Coupe with beer to the point where he was "feeling pretty good." Once the boy was tipsy, both Booth and Sirois had sexual intercourse with him.

During the visit to Sirois's home, Booth and Sirois discussed a camping trip that they intended to take in Lake Placid, New York, that summer. When Sirois was not present, Booth invited Coupe to attend, telling him that they would camp, swim, and go boating. After several more discussions with Booth, Coupe decided to go on the trip.

At the same time that Booth was seducing Coupe, he also began his exploitation of another student, Thomas Miller. Booth initiated this relationship while Miller was in sixth grade. In the summer of 1989, when Miller was fifteen years old, Booth persuaded Miller to join the camping trip to Lake Placid, promising waterskiing, camping, and "a good time." Miller had not yet met Sirois.

In late July 1989, Coupe and Miller traveled from Connecticut to Lake Placid with Booth. They set up camp on an island that they reached on Booth's motorboat. Over the next few days, other adults and teenagers joined them, including Sirois, who brought along another boy, Scott Barnes. Sirois had with him a camera and a video recorder. Booth also took a camera to the campsite.

Booth, Coupe, Miller, Barnes, and Sirois shared a lean-to on the island. A few nights into the trip, the five engaged in group sex. At some point, Sirois set up his video camera and began filming the various sexual acts of the participants. Coupe recalled that during the videotaping Sirois was "telling people what to do" as he recorded the sex. Miller testified that after the videotaping concluded, Sirois engaged in sexual intercourse with him.

In July 1992, after a number of Booth's past victims came forward, law enforcement agents obtained a warrant to search Booth's home. The agents discovered a set of photographs taken during the 1989 Lake Placid trip, most of which depicted nonsexual activities. Four of the photographs, however, showed Booth, Coupe, and Barnes engaged in sexual acts. Both Coupe and Miller testified that although they could not specifically recall the photographs being taken, Sirois was the only person in a position to have done so. No videotape was found. Booth eventually pleaded guilty to several federal charges of sexual exploitation of minors under 18 U.S.C. §§ 2251(a) and 2422. United States v. Booth, 996 F.2d 1395 (2d Cir.1993) (per curiam ) (affirming a ten-year prison sentence).

The Government filed a four-count indictment against Sirois. Counts One and Two centered on the four photographs found in Booth's home. Count One charged that Sirois had aided and abetted Booth in the sexual exploitation of Coupe. Specifically, it alleged that Booth had transported Coupe across state lines intending that Coupe engage in sexual activity so that visual depictions might be created. It further asserted that those depictions crossed state lines, in violation of 18 U.S.C. § 2251(a), ¹ and that Sirois had aided and abetted this crime by taking the photographs. Count Two charged that Sirois violated a separate provision of § 2251(a) by "employing, using, and persuading" Coupe and Miller to engage in sexually explicit conduct for the purpose of producing visual depictions of that conduct. Count Three charged that Sirois, aided and abetted by Booth, had violated 18 U.S.C. § 2422 ² by engaging in illegal sexual activity with a minor (Miller) after the boy had been transported across state lines for that purpose. Count Four alleged that Sirois and Booth had conspired to commit all three crimes.

A jury convicted Sirois on all four counts, and Judge Burns sentenced him to seventy months in prison. He appeals from his judgment of conviction.

II. DISCUSSION

Sirois challenges several parts of the jury charge as well as the sufficiency of the evidence on all counts. We review the jury charge de novo, United States v. Carr, 880 F.2d 1550, 1555 (2d Cir.1989), but draw all inferences in the government's favor when reviewing the sufficiency of the evidence, Martinez, 54 F.3d at 1042.

A. The Jury Charge

1. Completion of the Offense

Sirois argues that § 2251(a) is violated as soon as a minor is transported across state lines and that subsequent actions (such as taking pictures) therefore cannot give rise to aiding and abetting liability. He compares the statute to 18 U.S.C. § 2421 (a latter-day version of the Mann Act), which prohibits interstate transportation of any person in order to engage that person in prostitution. A Mann Act offense is completed once a prostitute crosses state lines. See Wilson v. United States, 232 U.S. 563, 571, 34 S.Ct. 347, 350, 58 L.Ed. 728 (1914) (finding a violation of the Mann Act even though the defendants, Chicago pimps, refused to accept women who had been transported from Wisconsin, because "the offense is complete when 'any such woman or girl shall be transported in interstate or foreign commerce....' "). Given the similarity between the two statutes, Sirois argues that the same should be true of § 2251(a). Compare § 2251(a) (punishing "[a]ny person who ... transports any minor in interstate or foreign commerce ... with the intent that such minor engage in" sexual activity that will be photographed) with § 2421 (punishing "[w]hoever knowingly transports any individual in interstate or foreign commerce ... with intent that such individual engage in ... any [illegal] sexual activity"). He further argues that his alleged role did not directly involve the transportation, but only the subsequent photographing. If the offense is completed upon transportation, then, Sirois contends, he cannot be held liable for helping Booth to violate § 2251(a).

As the government points out, however, § 2251(a) contains a further element that § 2421 does not: Either the child pornography itself must cross state lines, or the defendant must know or have reason to know that the pornography will cross state lines. 18 U.S.C. § 2251(a) (penalizing pornographer "if such person knows or has reason to know that [child pornography] will be transported in interstate or foreign commerce or mailed, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed"). Unlike the Mann Act, a violation of § 2251(a) that is based on the actual transportation of child pornography across state lines cannot be complete until the pornography is so transported. The jury was entitled to find Sirois guilty of aiding and abetting Booth's violation of § 2251(a) if it found that he helped to create the visual depictions of the illicit sexual conduct that were subsequently transported.

We do not hold, of course, that all violations of § 2251(a) remain inchoate until the pornography actually crosses state lines. To the contrary, the statute requires either that the pornography cross state lines or that the defendant know or have reason to know that pornography will do so. In the present case, where the indictment alleged that the photographs had actually been transported, the crime was ongoing until the photographs were carried back to Connecticut. We express no opinion as to whether the same would hold true if, in a different case, a violation of § 2251(a) were premised solely on a defendant's intent to transport photographs.

2. "Sole Dominant Purpose"

Judge Burns instructed the jury that, to prove a violation of § 2251(a), "[i]t is not necessary for the government to prove ... that illegal sexual activity, or visual...