United States v. Laursen
| Decision Date | 30 January 2017 |
| Docket Number | No. 14-30244,14-30244 |
| Citation | 847 F.3d 1026 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Michael Thorvald LAURSEN, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Lynn C. Hartfield (argued), Law Office of Lynn C. Hartfield LLC, Denver, Colorado, for Defendant–Appellant.
Helen J. Brunner (argued), First Assistant United States Attorney; Annette L. Hayes, United States Attorney; United States Attorney's Office, Seattle, Washington; for Plaintiff–Appellee.
Before: Michael Daly Hawkins, Johnnie B. Rawlinson, and Consuelo M. Callahan, Circuit Judges.
OPINION
In this appeal we address whether taking consensual nude "selfies"1 involving a forty-five-year-old man and a sixteen-year-old girl is sufficient to support a conviction for production and possession of child pornography. We conclude that this evidence was sufficient to support the conviction, and we specifically reject the argument made by defendant Michael Thorval Laursen (Laursen) that the legality of his sexual relationship with a sixteen-year-old under Washington state law precluded prosecution under federal law.
In July, 2012, Laursen reported to police that a sixteen-year-old girl, referred to in this opinion as J.B., was being prostituted by her uncles. At the time, J.B. lived with her adoptive father Art Brown. Laursen and J.B. were involved in a consensual sexual relationship, but neither of the two apprised detectives of that fact.
As part of the investigation into the sexual abuse of J.B., Detective Rodriguez met with Art Brown, J.B.'s adoptive father, who produced J.B.'s laptop, cell phone, and cell phone records. A forensic examination of J.B.'s laptop revealed "sexually explicit images" of J.B. and Laursen.
Seven months later, Laursen's sister Maureen Gonzales contacted Detective Rodriguez after finding a digital camera in her kitchen that belonged to Laursen. The digital camera's memory card contained sexually explicit photos of J.B. Maureen gave police the digital camera and Laursen's laptop. Maureen acknowledged that Laursen was incarcerated when she gave detectives the digital camera. Detective Rodriguez subsequently obtained a search warrant for the digital camera and for Laursen's laptop.
A forensic examination of the camera's memory card revealed an array of photos. Nine pictures on the memory card contained nude images of J.B. Several non-sexual pictures were also on the memory card. The laptop did not contain sexually explicit photos.
On February 21, 2013, detectives interviewed Laursen. Detectives informed Laursen that they knew about the nude photos he had taken with J.B. Laursen initially denied taking the nude photos, but later admitted that he took them. When detectives continued questioning Laursen, he asked detectives to stop recording. Laursen then inquired:
The answer to Laursen's question was a definitive yes. Laursen was charged with one count of production of child pornography in violation of 18 U.S.C. §§ 2251(a) and (e). A subsequent indictment added possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). Laursen waived his right to a jury trial and proceeded to trial before a judge.
Prior to trial, the district court agreed with Laursen that federal jurisdiction in the case was predicated on "a pretty narrow nexus" because there was "no production of pictures over the Internet here, for example, to third parties or anything like that[.]" Nevertheless, the court ultimately determined that production of child pornography with a cell phone that traveled across state lines satisfied "the federal nexus under 2251 and 2252(a) (sic)."
The government's case against Laursen focused on two sets of photographs. The first set of photographs was found on the hard drive for J.B.'s Toshiba laptop. The second set of photographs came from the memory card for the digital camera.
J.B.'s testimony was an integral part of the government's case. She testified that she met Laursen in March, 2012, when she was sixteen, and around the time she suffered a drug relapse
. J.B. admitted that her memory of that time period was "pretty cloudy," and it was hard to remember details. J.B's and Laursen's sexual relationship began the second time they saw each other. Their relationship became serious when J.B. ran away from home in July, 2012, and commenced living with Laursen. During this period, J.B. and Laursen interacted intimately in a variety of locations, including motels and the homes of Laursen's friends and family. When Laursen took J.B. to the police in July, 2012, J.B. told detectives that Laursen was her best friend and hero. However, J.B. acknowledged at trial that she often skipped school to see Laursen, obtained drugs from Laursen, and ran away from home because of Laursen's influence.
J.B. recalled that she took the sexually explicit photographs found on the Toshiba hard drive with her cell phone before a motel room mirror in August, 2012. J.B. identified Laursen as the man standing next to her in the "selfie" photographs. J.B. testified that she took the photographs with Laursen because he told her they "looked good together" and said "he wanted to take pictures."2 Although J.B. stated that she did not like "taking pictures like that," she and Laursen took sexually explicit photographs each time they saw each other. However, J.B. deleted some photographs at Laursen's request. J.B. transferred the sexually explicit photographs from her cell phone to her Toshiba hard drive days after the photographs were taken. J.B. also sent some of the photographs to Laursen's cell phone.
J.B. also identified herself in the sexually explicit photographs found on the memory card. J.B. assumed that Laursen took the photographs because her hair was dyed red in the pictures, which was the same time period when she and Laursen were in a relationship and living together. J.B. also identified a red blanket and brown pillow in the picture that she said belonged to Laursen. In addition, J.B. identified the digital camera in evidence as belonging to Laursen because it had a burn mark on it.3
J.B. was adamant that she had never taken sexually explicit photos with anyone other than Laursen. J.B. said she lied when she previously told detectives that her uncle recorded her performing sexual acts. She also lied to police when she said that her uncles sexually abused her. The court precluded Laursen from questioning J.B. about her sexual relationships with other men in 2012.
Laursen's sister Maureen and brother-in-law Adam testified against him at trial. Laursen lived with Maureen and Adam in 2012, and regularly brought J.B. to their home. Maureen and Adam identified the digital camera in evidence as Laursen's property. In early 2013, Maureen picked up the digital camera from among Laursen's belongings in her kitchen area, and looked through the pictures on the camera. Maureen immediately contacted the police when she saw the nude photos of J.B. Maureen testified that the digital camera had not been stolen, and she only told police it was because Laursen had lied to her. Maureen and Adam identified Laursen as the man pictured in the photographs stored on J.B.'s Toshiba hard drive.
To satisfy the jurisdictional element of the offenses, the government called a Toshiba representative who testified that the hard drive in J.B.'s computer was shipped from another country. A Kingston Technology representative similarly testified that the company's camera memory cards are made in Japan and shipped to California.
In his defense, Laursen presented nude photographs he took of himself and submitted in support of his theory that he was not the man in the photographs submitted by the government. The pictures Laursen submitted showed a scar on Laursen's left leg that was absent from the man's leg in one of the photographs submitted by the government. However, there was no evidence presented of when the scar was acquired.
The district court found J.B. to be "very believable" and credited her "whole story of how these pictures were taken" because her version was corroborated by other evidence. The court also noted that Laursen's lies to authorities about his sexual relationship with J.B. reflected knowledge that J.B. was a minor.
The court found Laursen guilty of production and possession of child pornography. The court found that Laursen knowingly "used [J.B.] to take part in sexually explicit conduct for the purpose of producing a visual image of such conduct." The court concluded that Laursen produced or aided and abetted J.B. in producing the photographs, and knew that J.B. was sixteen years old. The court did not consider one of the photographs because of the issue of the scar on Laursen's leg, and also excluded consideration of one nude photograph that was not clearly pornographic.
The Court additionally determined that Laursen produced the photographs found on his camera's memory card. Finally, the court ruled that the child pornography was produced and possessed using materials that had been transported in interstate commerce.
At sentencing, Laursen argued that the district court should have dismissed his case due to a lack of jurisdiction, because under state law J.B. was "a young woman of legal consensual age and is therefore, by definition, not a child." The court overruled his objection and sentenced Laursen to fifteen years' imprisonment for the production of child pornography, and ten years' imprisonment for possession of child pornography. The judge told Laursen that the sentence was the only one "available" because the judge was "bound by the law, whether I agree with it or not." Laursen filed a timely...
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