United States v. Skinner
| Docket Number | 22-4131 |
| Decision Date | 08 June 2023 |
| Citation | 70 F.4th 219 |
| Parties | UNITED STATES of America, Plaintiff - Appellee, v. Troy George SKINNER, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, District Judge. (3:19-cr-00019-MHL-1)
ARGUED: Laura Jill Koenig, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Jacqueline Romy Bechara, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Frances H. Pratt, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia; Robert J. Wagner, ROBERT J. WAGNER, PLC, Richmond, Virginia, for Appellant. Jessica D. Aber, United States Attorney, Brian R. Hood, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Before GREGORY, Chief Judge, NIEMEYER, and RICHARDSON, Circuit Judges.
Affirmed by published per curiam opinion.
Troy George Skinner, a citizen and resident of New Zealand, carried on an online relationship with a thirteen-year-old girl in Virginia that involved several sexually explicit video calls. After law enforcement discovered numerous images and video recordings from those calls on Skinner's cell phone and computer, a federal grand jury charged Skinner with nine counts of producing child pornography in violation of 18 U.S.C. § 2251(a). He entered a conditional guilty plea to one of the counts and was sentenced to twenty-one years in prison.
Skinner challenges both his conviction and sentence on appeal. He first argues that his conviction involves an impermissible extraterritorial application of § 2251(a) because he was in New Zealand when the unlawful images and videos were produced. Second, he contends that his conviction violates the Fifth Amendment Due Process Clause because he lacked adequate notice that the victim was underage. Third, and finally, he challenges his sentence on the grounds that the district court improperly applied a two-level enhancement for offenses involving "sexual contact." Finding no error, we affirm Skinner's conviction and sentence.
In December 2017, Skinner began communicating with a girl identified as "R.D." on Steam, an online gaming and messaging platform. At the time, R.D. was thirteen years old and lived in Goochland, Virginia, and Skinner was twenty-four and lived in New Zealand. Skinner and R.D. soon moved their conversations to another online platform, Discord, which allows users to exchange typed messages and participate in live-streamed video calls on their computers and cell phones.
During their early online conversations, Skinner truthfully told R.D. that he was twenty-four, and R.D. falsely claimed that she was sixteen. R.D. also mentioned that she was home-schooled. In messages exchanged on January 7, 2018, Skinner told R.D. he wanted to be her boyfriend, to which R.D. responded: "You wouldn't mind being called a pedo?" J.A. 635. In another exchange the same day, they discussed the age of consent in the United States and New Zealand. R.D. wrote that she was "legally a kid" because she was under eighteen and that, in the United States, "[y]ou can't be with a minor if you're over 21 I think." J.A. 635-36. Skinner responded that the age of consent in New Zealand is sixteen. R.D. replied, "You'd get thrown in jail if it was here." J.A. 636.
Skinner and R.D.'s online interactions turned sexual in early January 2018. In addition to exchanging nude photographs of each other, they began having online sex during live video calls using their computers. During those calls, Skinner and R.D. each displayed their genitalia, touched themselves in suggestive ways, and masturbated on camera. Without R.D.'s knowledge or consent, Skinner captured several screenshots and video recordings of R.D. engaging in sexually explicit activity during those calls. At all relevant times, Skinner was in New Zealand and R.D. was in Virginia.
In June 2018, R.D. ended her online relationship with Skinner and cut off all communications with him. Later that month, Skinner traveled from New Zealand to Goochland, Virginia. En route to R.D.'s house, Skinner stopped at a local Wal-Mart, where he purchased duct tape, a folding pocketknife, and pepper spray. When Skinner arrived at the house, R.D.'s mother refused to allow him inside, at which point he tried to forcibly enter the home by breaking through a glass door. After warning Skinner several times to leave, R.D.'s mother fired a handgun at Skinner, wounding him in the neck. Local police officers arrived on the scene shortly thereafter and arrested Skinner. In addition to the duct tape, pocketknife, and pepper spray, police seized two cell phones from his person. Forensic examination showed that the phones had been used to access Google Mail accounts that contained pornographic images and videos of R.D.
In cooperation with U.S. authorities, law enforcement in New Zealand later seized a laptop from Skinner's apartment. Forensic analysis of the laptop uncovered 120 video and 56 image files, most of which depicted child pornography involving R.D.
In a September 2019 superseding indictment, a federal grand jury in the Eastern District of Virginia charged Skinner with nine counts of producing child pornography (18 U.S.C. § 2251(a)), one count of kidnapping and attempted kidnapping of a minor (18 U.S.C. §§ 1201(a)(1), (d), and (g)), and one count of kidnapping and attempted kidnapping (18 U.S.C. §§ 1201(a)(1) and (d)).
In three separate motions, Skinner moved to dismiss the superseding indictment. He raised several challenges to the indictment, two of which are relevant to this appeal. First, he sought to dismiss the production-of-child-pornography counts for lack of subject matter jurisdiction, arguing that § 2251(a) does not apply extraterritorially to cover his conduct in New Zealand. Second, he argued the production-of-child-pornography counts violated his due process rights. He maintained that because he never had direct, in-person contact with R.D., it was unconstitutional to subject him to § 2251(a)'s strict liability standard regarding a minor's underage status, and that he was at least entitled to a reasonable-mistake-of-age defense.
The district court denied Skinner's motions to dismiss. See United States v. Skinner, 536 F. Supp. 3d 23 (E.D. Va. 2021). It first held that § 2251(a) applies to extraterritorial conduct and, even if it did not, that Skinner's case represents a permissible domestic application of the statute. Id. at 31. The court also rejected Skinner's argument that the § 2251(a) charges violated the Due Process Clause because he had no way of knowing that R.D. was underage. Id. at 45. It noted that the Fourth Circuit has held that § 2251(a) does not require proof that the defendant knew the victim was underage, United States v. Malloy, 568 F.3d 166, 171 (4th Cir. 2009), and that the Supreme Court has endorsed the same position in dicta, United States v. X-Citement Video, Inc., 513 U.S. 64, 72 n.2, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). In light of those decisions, the district court concluded that "a mistake of age defense is not mandated by the Constitution." Skinner, 536 F. Supp. 3d at 48. The court was also unpersuaded by Skinner's argument that the severity of the fifteen-year mandatory minimum sentence for a § 2251(a) offense made it a due process violation to convict him without proving that he knew R.D. was underage. Id. at 49-50. And, in any event, the court found ample evidence in the record indicating that Skinner knew R.D. was no older than sixteen and legally underage in the United States. Id. at 48-50.
Skinner then entered a conditional guilty plea to one count of producing child pornography (Count 1 of the superseding indictment). Count 1 alleged that in January 2018, Skinner knowingly used a minor in Virginia "to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct, and for the purpose of transmitting a live visual depiction of such conduct." J.A. 350. It specifically identified a video file that showed R.D. engaging in sexually explicit conduct during a live video call in January 2018. The plea agreement, which the district court accepted, permitted Skinner to appeal the court's rulings on his motions to dismiss, as well as the sentence the court imposed.
Skinner's sentencing hearing took place in February 2022. The Government objected to the fact that the presentence report ("PSR") did not apply the two-level Sentencing Guidelines enhancement for an offense involving "sexual contact." U.S.S.G. § 2G2.1(b)(2)(A). Agreeing with the Government, the district court concluded that the enhancement applied because R.D.'s masturbation during the video calls with Skinner met the statutory definition of "sexual contact." The enhancement increased Skinner's total offense level from 38 to 40. Based on this offense level and Skinner's criminal history category of I, the court held that the Guidelines range was 292 to 360 months' imprisonment. After considering the 18 U.S.C. § 3553(a) sentencing factors, the court imposed a downward variance sentence of 252 months (twenty-one years).
On the Government's motion, the district court dismissed the remaining ten counts of the superseding indictment. The court entered final judgment on February 18, 2022, and Skinner timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
When reviewing the denial of a defendant's motion to dismiss an indictment, we review the district court's legal conclusions de novo and its factual findings for clear error. United States v. Pasquantino, 305 F.3d 291, 294 (4th Cir. 2002). We also review de novo a sentencing court's application of an enhancement in the Sentencing Guidelines based on a specific offense...
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