U.S. v. Smith, No. 03-13639.

• Decision Date: 18 March 2005
• Docket Number: No. 03-13639.
• Citation: 402 F.3d 1303
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alvin SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

402 F.3d 1303

UNITED STATES of America, Plaintiff-Appellee, v. Alvin SMITH, Defendant-Appellant.

No. 03-13639.

United States Court of Appeals, Eleventh Circuit.

March 18, 2005.

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Michael G. Nichola (Court-Appointed), Orlando, FL, for Defendant-Appellant.

Tamra Phipps, Karin B. Hoppmann, Asst. U.S. Atty., Tampa, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, RONEY and HILL, Circuit Judges.

TJOFLAT, Circuit Judge:

On February 5, 2003, following a jury trial in the United States District Court for the Middle District of Florida, Alvin Smith was convicted of one count of producing child pornography in violation of 18 U.S.C. § 2251(a)¹ and one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).² The court sentenced him to 188 months in prison and 60 months of supervised release. Smith appealed and filed his opening brief on May 4, 2004. On October 1, 2004, in United States v. Maxwell, 386 F.3d 1042 (11th Cir.2004), this court held that purely intrastate possession of child pornography was not converted "into an activity subject to Commerce Clause regulation" simply because "the disks on which the pornography was ultimately copied traveled, when blank, to Florida from someplace outside of Florida." Id. at 1068. Maxwell necessarily casts doubt on Smith's conviction because the asserted basis for federal jurisdiction over his offenses is that the film, photo paper, and film processor used to produce the pictures he possessed had traveled in interstate commerce sometime before being used to produce them.

Before determining whether Maxwell controls this case, however, we must first determine whether it is relevant at all in light of another recent decision of this court. In United States v. Levy, 379 F.3d 1241, reh'g en banc denied, 391 F.3d 1327 (11th Cir.2004), we held that the unexceptional rule that issues not briefed are deemed waived applies even to the exceptional case where the defendant seeks to raise a claim that was squarely foreclosed by our own precedent at the time his opening brief was filed but has since been made viable by an intervening decision. Id. at 1241-42; see also Levy, 391 F.3d at 1336 (Tjoflat, J., dissenting from the denial of rehearing en banc) (observing that it was "certainly understandable" that the defendant did not raise the "waived" claim in his opening brief given that our own precedent "unequivocally rejected the same argument"). Under Levy, Maxwell does not apply unless Smith advanced a Maxwell-type claim in his opening brief. In his supplemental letter memorandum,³ Smith argues that two of the issues raised in his opening brief fairly encompass the Maxwell issue; the Government disagrees. Although Smith's brief is not a model of clarity, in light of the principle that we "liberally read briefs to ascertain the issues raised on appeal," United States v. Starke, 62 F.3d 1374, 1379 (11th Cir.1995), we conclude that Smith has sufficiently presented the Maxwell issue. Accordingly, Levy does not preclude him from relying on Maxwell, although we will review the issue only for plain error because Smith did not raise it at trial.

In Part I, we briefly recount the facts of this case. In Part II, we address the Levy issue. In Part III, we address Smith's Maxwell claim.

I.

In March 2002, the Tampa Police Department executed a search warrant on the home of the defendant's mother. The search was part of an investigation of the defendant's brother, who lived at the residence and was suspected of possessing and selling drugs. Accordingly, the focus of the warrant was drugs and drug paraphernalia. Upon entering the residence, a narcotics dog alerted the officers to a lockbox that was slightly ajar. One of the officers opened the lockbox and discovered a number of photographs that were pornographic in nature. Some of the pictures depicted what appeared to be "very, very young girls having sex ... with a male who [was later] identified as the defendant." At trial, the defendant's mother testified that the lockbox belonged to Smith, although he was not living at the residence at the time of the search because he was in prison.

Police later determined that the lockbox contained 1768 pictures. Almost all of the photos were sexually explicit, though many were of persons above the age of eighteen. As part of the investigation, an officer in the department's sex crimes and child abuse unit began visiting local shelters for runaways and asking counselors whether they recognized any of the girls in the pictures. Eventually, the officer was able to locate a girl who was in a number of photos that were dated November 1999, at which time the girl was still fourteen years old.⁴ She confirmed that the photos were of her, and, from another photo found in the lockbox, she identified Smith as the man who had taken them.

At trial, the girl testified that she was living on the street as a runaway in November 1999 when Smith approached her and her then-seventeen-year-old boyfriend, Dominick. Dominick got into Smith's car, and Smith and Dominick left and returned a few minutes later. Dominick told her that she could make some money if she would allow Smith to take some pictures of her in her underwear, and she agreed to do so. She and Dominick then got back into Smith's car and went with him to a house where he retrieved a camera and some film. The three of them then went to a hotel, and Smith went inside and paid for a room. Only Smith and the girl actually went into the room; Dominick stayed outside.

Once inside the room, Smith told the girl to take off all of her clothes. Although Dominick had told her that she would not have to take off her underwear, she did as Smith instructed. Smith then began taking pictures; he instructed her how to pose a number of times and even physically spread her genitalia himself for a particularly graphic shot. Afterward, he gave her $60 or $70 and left, and she and Dominick spent the night in the room.

In addition to the testimony of the witness and several of the officers involved in the investigation, the Government introduced a recording of a phone conversation between Smith and his mother. Smith placed the call while incarcerated at the Hillsborough County Jail in June 2002. At one point in the conversation, he complained, "I mean, there is no law against havin' no pictures, and there is no law against takin' no pictures. But they tryin' to make it seem like I went out and took pictures of a fourteen year old girl and I knew it." Another part of the conversation went as follows:

LUCILLE SMITH: A person should be able to take pictures or whatever if they want to.

ALVIN SMITH: Yeah. It ain't like I went out, just ... went out and and and kidnapped somebody and took it....

LUCILLE SMITH: And anyway, them pictures that you took, the girls must have wanted you to take `em, or else they wouldn't of let you took `em.

ALVIN SMITH: Of course they did. But yeah, though they tryin' to make it seem like it's such a crime, such a crime

. . . .

. . . .

ALVIN SMITH: ... I told her, you know, just they takin' it too personal. I mean, times have changed.

LUCILLE SMITH: And I'd of told her, well, now looky here. I couldn't of took them pictures if them girls didn't want me to take `em. They posed and everything for me to take `em. It'd of been different if you just took it without they, uh, their acknowledgment.

ALVIN SMITH: I know.

To establish the statutes' jurisdictional element — i.e., that the pornography "was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce" — the Government called the Vice President of Photo Operations for Eckerd's Drugs. She testified that some of the photos were printed on Kodak paper that Eckerd's received from Rochester, New York, and processed by equipment that it received from California.

At the close of the evidence, the defense moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29. As to the possession count, the defense argued that there was insufficient evidence that Smith knew that the girl was less than eighteen years of age. The defense also argued that there was insufficient evidence to establish the jurisdictional element of either count. The court denied the motion, and sent the case to the jury. The jury returned a verdict of guilty on both counts. The verdict included specific findings that the pornography was produced using film, photo paper, and a film processor that had traveled in interstate or foreign commerce.

II.

According to the Supreme Court, "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases ... pending on direct review or not yet final." Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987). In this circuit, however, this principle does not apply if the defendant did not advance a claim based on the "new rule" in his opening brief on appeal. If the "new rule" is announced after the defendant's opening brief is filed, it will be applied retroactively only if the defendant made a similar argument in his initial brief, for we will not allow him to substitute or supplement his initial brief or petition for rehearing in order to raise the claim. See, e.g., United States v. Njau, 386 F.3d 1039, 1041-42 (11th Cir.2004) (letter submitted under Federal Rule of Appellate Procedure 28(j)); United States v. Hembree, 381 F.3d 1109, 1110 (11th Cir.2004) (substitute or amended principal brief); United States v. Curtis, 380 F.3d 1308, 1310-11 (11th Cir.2004) (supplemental brief); Levy, 379 F.3d at 1241-42 (petition for rehearing). Indeed, the Levy rule applies even if Supreme Court vacates our initial decision and remands the case for...