United States v. Palomino-Coronado

• Decision Date: 05 November 2015
• Docket Number: No. 14–4416.,14–4416.
• Citation: 805 F.3d 127
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Anthony PALOMINO–CORONADO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

805 F.3d 127

UNITED STATES of America, Plaintiff–Appellee

v.Anthony PALOMINO–CORONADO, Defendant–Appellant.

No. 14–4416.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 17, 2015.

Decided: Nov. 5, 2015.

ARGUED:Joanna Beth Silver, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant. Kristi Noel O'Malley, Office of the United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF:James Wyda, Federal Public Defender, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

Before MOTZ, KING, and GREGORY, Circuit Judges.

Opinion

Reversed and vacated by published opinion. Judge GREGORY wrote the opinion, in which Judge MOTZ and Judge KING joined.

GREGORY, Circuit Judge:

Anthony Palomino–Coronado was convicted of knowingly employing, using, persuading, inducing, enticing, or coercing a minor in sexually explicit conduct, for the purpose of producing a visual depiction of that conduct, in violation of 18 U.S.C. § 2251(a). On appeal, Palomino–Coronado claims that there was insufficient evidence to convict him and that the district court improperly denied his motion for judgment of acquittal under Federal Rule of Criminal Procedure 29. We agree.¹

I.

In the early morning hours of May 3, 2012, Prince George's County police officers were called to a home in Laurel, Maryland, in response to a report of a missing seven-year-old child. Officers eventually found the child, B.H., outside the house next to a fence adjoining the neighbor's yard. B.H. said that she had been next door hanging out with a friend.

Interviews with B.H. led the police to bring her to the hospital for a sexual assault forensic exam. Nurse Sharon Rogers performed the exam and found that B.H.'s hymen had been torn, indicating that it had been penetrated. Rogers also identified an odor, redness, and irritation, which were consistent with an infection. Rogers determined that B.H. likely could not have gotten this type of infection from sexual activity in the hours preceding the exam, suggesting that sexual activity had also occurred previously. Rogers also interviewed B.H. During the interview, B.H. said that she had been at “Anthony's” house that night, that she had been there about ten times previously, and that they would spend time in his basement. Palomino–Coronado, then nineteen years old, was B.H.'s neighbor.

Following the exam, Detective Cleo Savoy interviewed B.H. The two first spoke privately for about an hour and a half and were then joined by B.H.'s guardian; at that point, Savoy began to record the interview. During the unrecorded portion of the interview, Savoy testified that B.H. said that she went to Palomino–Coronado's house, where they played games in the basement, Palomino–Coronado kissed her, and they had sex. B.H. also said that Palomino–Coronado took pictures. During the recorded portion of the interview, B.H. denied having any sexual contact with Palomino–Coronado.

On May 3, 2012, Prince George's County detectives interviewed Palomino–Coronado and swore out a search warrant on his residence. The police also seized Palomino–Coronado's cell phone. Later that day, a communications specialist with the Prince George's County Police Department extracted deleted and undeleted images from Palomino–Coronado's cell phone, including one picture of a male lying on top of a paisley-patterned sheet while vaginally penetrating a child. The extraction revealed that this particular image had been deleted.

The FBI later conducted its own forensic image extraction from Palomino–Coronado's cell phone, finding the same photo of a man penetrating a child. Other images were also recovered, including thousands of Palomino–Coronado's face and at least three other images of B.H. in non-sexually explicit contexts.

On May 15, 2012, Martha Finnegan, an FBI child forensic interview specialist, interviewed B.H. During that interview, B.H. told Finnegan that she had had sexual contact with Palomino–Coronado and identified the two individuals in the picture as “B” for B.H. and “A” for Anthony.

The government sought to indict Palomino–Coronado on one count: knowingly employing, using, persuading, inducing, enticing, and coercing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct in violation of 18 U.S.C. § 2251(a).²

At trial, B.H. testified that Palomino–Coronado had touched her private parts on more than one occasion. She also testified that she was scared during her initial interview with the police and had lied to them. She then identified herself and Palomino–Coronado in the pictures from his cell phone, including the sexually explicit photo. B.H. also testified that during her interview with Savoy, Savoy told her that she could not go home if she kept denying that she and Palomino–Coronado had had sex. B.H. said that Savoy had taken her teddy bear away from her during the interview because she was not answering Savoy's questions.

Finnegan also testified, both as a lay witness and as an expert in child forensic interviewing. As part of her testimony, she evaluated the interview that Savoy conducted and explained that it was coercive and did not follow established protocols. Finnegan also testified about her own interview of B.H., during which B.H. disclosed to her that B.H. and Palomino–Coronado had engaged in sexual conduct and identified the photograph.

At the close of the government's case, Palomino–Coronado made a motion for judgment of acquittal based on insufficient evidence pursuant to Federal Rule of Criminal Procedure 29. The district court denied the motion.

The jury subsequently found Palomino–Coronado guilty. The court sentenced him to thirty years, which was both the maximum permitted under the statute and the lowest amount of time within the guidelines range. Palomino–Coronado timely appealed.

II.

We review a challenge to the sufficiency of the evidence de novo. United States v. Engle, 676 F.3d 405, 419(4th Cir.2012). We must affirm the verdict if it is supported by substantial evidence, viewed in the light most favorable to the government. United States v. Gillion, 704 F.3d 284, 294 (4th Cir.2012) (citing United States v. Reid, 523 F.3d 310, 317 (4th Cir.2008) ). Substantial evidence is “evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt.” United States v. Alerre, 430 F.3d 681, 693 (4th Cir.2005) (citation omitted).

A defendant bringing a sufficiency challenge “must overcome a heavy burden.” United States v. Hoyte, 51 F.3d 1239, 1245 (4th Cir.1995). The Court “may not overturn a substantially supported verdict merely because it finds the verdict unpalatable or determines that another, reasonable verdict would be preferable,” United States v. Burgos, 94 F.3d 849, 862 (4th Cir.1996) ; instead reversal for insufficiency must “be confined to cases where the prosecution's failure is clear,” Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

III.

Palomino–Coronado contends that the government failed to prove one of the elements of § 2251(a) —namely, that he acted for the purpose of producing a visual depiction.³

Section 2251(a) provides, in relevant part,

“Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct ... shall be punished as provided under subsection (e) ... if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means.”

18 U.S.C. § 2251(a).

As the text indicates, § 2251(a) contains a specific intent element: the government was required to prove that production of a visual depiction was a purpose of engaging in the sexually explicit conduct. Id.; see United States v. Lebowitz, 676 F.3d 1000, 1013 (11th Cir.2012). “It is simply not enough to say ‘the photo speaks for itself and for the defendant and that is the end of the matter.’ ” United States v. Crandon, 173 F.3d 122, 129 (3d Cir.1999) (discussing the purpose requirement in the related cross-reference under U.S.S.G. § 2G2.1(c)(1) ). That is, a defendant must engage in the sexual activity with the specific intent to produce a visual depiction; it is not sufficient simply to prove that the defendant purposefully took a picture. Nonetheless, courts do not require that a defendant be single-minded in his purpose to support a conviction under § 2251(a). E.g., Lebowitz, 676 F.3d at 1013 ; United States v. Morales-de Jesus, 372 F.3d 6, 21–22 (1st Cir.2004) ; see also United States v. Cox, 744 F.3d 305, 309 (4th Cir.2014) (considering “purpose” in the context of the application of a cross-reference under § 2G2.1(c)(1) of the sentencing guidelines governing production of some child pornography offenses).

We have not previously considered a challenge to the sufficiency of the evidence in a conviction under § 2251(a). Courts have sometimes been able to rely on direct evidence indicating a defendant's purpose. E.g., Lebowitz, 676 F.3d at 1013. In Lebowitz, for example, the minor testified that he and the defendant “discussed videotaping a sexual encounter prior to the recording.” Id.; see also United States v. Lee, 603 F.3d 904, 918 (11th Cir.2010) (holding that the defendant's description of “how many photographs he wanted of each girl” and “how he wanted the girls to pose” contributed to the reasonableness of the jury's finding that he intended to use the minors in the production of child pornography).

More often, however, courts are presented only with circumstantial evidence to show that a defendant acted with purpose. For example, defendants' actions, instructions, and descriptions of the visual depictions produced...