United States v. Sammons

Decision Date16 December 2022
Docket Number22-3113
Citation55 F.4th 1062
Parties UNITED STATES of America, Plaintiff-Appellee, v. Christopher Michael SAMMONS, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Kevin M. Schad, FEDERAL PUBLIC DEFENDER'S OFFICE, Cincinnati, Ohio, for Appellant. Kevin Koller, UNITED STATES ATTORNEY'S OFFICE, Cincinnati, Ohio, for Appellee. ON BRIEF: Kevin M. Schad, FEDERAL PUBLIC DEFENDER'S OFFICE, Cincinnati, Ohio, for Appellant. Kevin Koller, UNITED STATES ATTORNEY'S OFFICE, Cincinnati, Ohio, for Appellee.

Before: SUTTON, Chief Judge; COLE and GRIFFIN, Circuit Judges.

SUTTON, Chief Judge.

In online chats with two undercover officers, Christopher Sammons shared child pornography, requested videos of his correspondents sexually abusing children, described abusing his niece, and offered more videos down the road of planned abuse. The FBI apprehended Sammons hours before he was scheduled to babysit his niece, and he confessed to taking and sharing explicit photos of her online. A jury convicted him of several child-pornography charges. We affirm.

I.

On March 11, 2019, undercover FBI Agent Aaron Hurst made an online post feigning interest in incestuous sexual abuse. An anonymous user, later identified as Sammons, responded. He explained that he babysat his six-year-old niece every two weeks and offered to share videos of future interactions with her. Sammons also sent Agent Hurst child pornography. In return, Sammons repeatedly requested videos of Agent Hurst abusing his (fictitious) daughter.

Agent Hurst continued the correspondence as he tried to uncover the anonymous user's identity. On Saturday, March 23, Sammons stated that he would see his niece that coming Thursday and described plans to record himself abusing her. To show Agent Hurst that his niece was "real," Sammons shared three photographs of her wearing a bathing suit. R.159 at 52. He also told Agent Hurst that he had confirmed his niece was off school on Friday, leaving "more time with her alone." Id. at 54.

On Monday, March 25, Agent Hurst identified Sammons as the anonymous user and forwarded the case file to the Columbus FBI. Detective Brett Peachey of the Columbus Child Exploitation Task Force took action. Posing as a mother with two young daughters, Officer Peachey contacted Sammons that afternoon. Sammons shared a photo of his niece and again detailed the abuse he inflicted on her. Sammons also promised that, if Officer Peachey stayed up late on Thursday, he would send a video of him abusing his niece.

That Thursday, Officer Peachey and an FBI team detained Sammons when he returned home from work. They read Sammons his Miranda rights, and he agreed to be interviewed. Sammons initially denied wrongdoing but began to acknowledge his conduct as Officer Peachey confronted him with the gathered evidence. Sammons admitted to corresponding with the personas adopted by Agent Hurst and Officer Peachey and provided his chat username and phone password. He also confessed to exchanging child pornography online, including with Agent Hurst. While he denied penetrating his niece, he admitted to pulling her underwear to the side to take a picture of her genitals and to sharing it online. Sammons added that he had photographed her naked in the bathtub, and that "she enjoyed it" and "wanted [him] to do it." R.163 at 221. The interview lasted approximately 45 minutes. It ended with Sammons’ arrest.

Due to the messaging application's data-retention policies, officers recovered only 30 days’ worth of Sammons’ messages. The records showed that Sammons sent and received child pornography and distributed photos of his niece wearing a bathing suit. But the records did not include images or videos of Sammons abusing her.

A grand jury charged Sammons with one count of child sexual exploitation, 18 U.S.C. § 2251(a), two counts of making notices seeking or offering child pornography, id. § 2251(d)(1), and one count of distributing child pornography, id. § 2252(a)(2). After the indictment, Sammons recanted his confession. His lawyers retained a psychologist, Dr. Scott Bresler, to support Sammons’ contention that he had falsely confessed. Dr. Bresler reviewed a video of the interrogation and found it free from threats or coercion. But Dr. Bresler still felt that Sammons may have falsely confessed due to a suggestive and compliant personality. The government moved to exclude Dr. Bresler's testimony. The court held a Daubert hearing, after which it excluded Dr. Bresler's testimony as unreliable.

Sammons’ trial defense focused on the argument that a compliant personality and PTSD—stemming from childhood abuse and a tour in Afghanistan—led him to falsely confess. Sammons took the stand and admitted to distributing child pornography. But he denied abusing his niece and argued that he had falsely confessed because he was "willing to say what [Officer Peachey] wants me to say to just get it over with." R.163 at 166. The court instructed the jury that "people, for various reasons, may admit to crimes they did not in fact commit," and that the jury should evaluate the confession based on all the evidence presented at trial. R.160 at 84. The jury convicted Sammons on each count, and the court imposed a 300-month sentence.

II.

Sammons challenges his convictions on three grounds: that one-on-one messages do not amount to notices inviting child pornography; that the court erroneously excluded Dr. Bresler's testimony; and that insufficient evidence supported his child-sexual-exploitation conviction.

A.

Meaning of statute. Federal law forbids "any person" from "mak[ing], print[ing], or publish[ing] ... any notice or advertisement seeking or offering" child pornography or child sexual exploitation. 18 U.S.C. § 2251(d)(1). The government does not argue that Sammons’ messages constituted "advertisements." The validity of these convictions thus turns on whether his non-public, one-on-one messages amount to "mak[ing]" "any notice" "seeking or offering" child pornography—and whether in particular they count as "any notice." The key debate, according to Sammons, is whether "notice" covers private, one-on-one communications.

In passing the law, Congress did not define "notice," requiring us to look to its ordinary meaning at the time. When Congress enacted § 2251(d) in 1986, one dictionary after another defined "notice" as a "warning," "intimation," or "announcement," without reference to public dissemination or audience size. See, e.g. , Notice , Webster's Third New Int'l Dictionary 1544 (1993) (a "formal or informal warning or intimation of something: announcement"); Notice , Random House Unabridged Dictionary 1326 (2d ed. 1987) (an "announcement or intimation of something impending; warning"); see also Notice , Black's Law Dictionary 957 (5th ed. 1979) ("information, an advice, or written warning, in more or less formal shape, intended to apprise a person of some proceeding in which his interests are involved").

In other places in the United States Code, Congress uses "notice" in a similar way. It deploys the term to cover purely private notices directed to one person in non-public settings. See, e.g. , 5 U.S.C. § 7503 (notice of proposed suspension); 7 U.S.C. § 1981d (notice of loan service programs); 8 U.S.C. § 1229 (notice to appear at removal proceedings); 12 U.S.C. § 4206 (confidential notice to whistleblowers); 15 U.S.C. § 1692g(a) (notice of debt); 18 U.S.C. § 3771(a)(2), (c)(3) (notice of release); id. § 6005(b)(3) (notice of intent to request order compelling witness testimony); id. § 4243(i)(2)(B) (notice of proposed transfer of custody); id. § 843(e)(1) (notice of license revocation); id. § 4048(h) (notice of prisoner healthcare fee provisions); id. § 2704(a)(2) (notice of backup preservation order); 26 U.S.C. § 6303(a) (unpaid tax notice); 42 U.S.C. § 8431(a) (notice of violation); 46 U.S.C. § 30508 (notice of a claim).

In everyday speech, a "notice" frequently refers to a private one-on-one communication. That is particularly so when the subject matter of the communication is confidential or potentially embarrassing. Commonplace examples abound: layoff notices, lease termination notices, past due payment notices, notices of rent increase, and notices of violation.

The reality that some, perhaps many, notices are publicly disseminated to more than one person does not alter the term's meaning. General language often encompasses commonplace and atypical examples alike, making it important not to "narrow a provision's reach by inserting words Congress chose to omit"—here, by inserting "public" before "notice." Lomax v. Ortiz-Marquez , ––– U.S. ––––, 140 S. Ct. 1721, 1724–25, 207 L.Ed.2d 132 (2020).

Another aspect of the statute shows that "notice" covers one-on-one communications. It does not refer to a "notice or advertisement"; it refers to "any" such "notice or advertisement." 18 U.S.C. § 2251(d)(1). "Read naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’ " United States v. Gonzales , 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997). The use of "any" leaves "no basis in the text for limiting the [statutory] phrase." Ali v. Fed. Bureau of Prisons , 552 U.S. 214, 219, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008). "[A]ny notice" naturally covers private one-on-one messages.

The subject of the notice—child pornography or child sexual exploitation—reenforces this conclusion. Only the most brazen criminal would write notices "seeking or offering" participation in criminal activity in public and broadly distributed ways, as opposed to doing so in covert and surreptitious ways. A statute criminalizing only notices for child sexual exploitation flown behind blimps, published in The Wall Street Journal , or otherwise publicly shared would not prove particularly effective. Surely Congress sought to deter notices for child pornography likely to work, not to deter those unlikely to receive a...

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