United States v. Spoor

• Decision Date: 14 September 2018
• Docket Number: August Term 2017,No. 16-2972-cr,16-2972-cr
• Citation: 904 F.3d 141
• Parties: UNITED STATES of America, Appellee, v. Ronald T. SPOOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

904 F.3d 141

UNITED STATES of America, Appellee,

v.Ronald T. SPOOR, Defendant-Appellant.

No. 16-2972-cr

August Term 2017

United States Court of Appeals, Second Circuit.

Argued: March 8, 2018

Decided: September 14, 2018

Tiffany H. Lee, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Rochester, NY, Appellee.

Jonathan I. Edelstein, Edelstein & Grossman, New York, NY, for Appellant-Defendant.

Before: Cabranes, Carney, Circuit Judges, and Caproni, District Judge.^*

Valerie Caproni, District Judge:

Defendant-appellant Ronald T. Spoor ("Spoor") appeals from an August 18, 2016 judgment of the United States District Court for the Western District of New York (Siragusa, J. ) convicting him, following a jury trial, of two counts of production of child pornography, in violation of 18 U.S.C. §§ 2251(a) and (e),¹ and four counts of possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2).² The District Court sentenced Spoor principally to 360 months of imprisonment and 15 years of supervised release. On appeal, Spoor challenges the sufficiency of the evidence; the District Court’s in limine ruling to admit evidence of his prior conviction for a Criminal Sexual Act in the First Degree, in violation of New York Penal Law § 130.50(3) ; and the reasonableness of his 360-month sentence. We reject each of Spoor’s arguments, and, accordingly, AFFIRM the District Court’s judgment.

I. BACKGROUND

On December 17, 2012, Spoor’s nephew discovered a cache of what appeared to be child pornography on a hard drive attached to Spoor’s computer. The images included young boys, in sexually suggestive positions, and engaged in sex acts with adult men. In response, Spoor’s ex-wife and his nephew immediately contacted the New York state police, who took possession of several hard drives found in Spoor’s work area and began an investigation.

The hard drives turned over to law enforcement contained two videos that are the subject of the child pornography production charges in this case, as well as certain of the possession charges. The first video is a 24-minute video of Spoor’s son and another boy, both naked, playing in a recreational vehicle, or R/V. This video is referred to by the parties as the "Camper Video." The Camper Video begins in a dark, dimly lit room, which appears to be the sleeping area of an R/V. The two boys are under the covers. After several minutes, an unseen person, later identified as Spoor, carries the camera to the foot of the bed and positions it under the covers. For the briefest of moments, the genitals of one of the boys are visible in the center of the screen. The remainder of the video shows the boys playing on the bed while a children’s movie plays in the background. The second video, or "Bathroom Video," was shot with a pinhole camera Spoor installed in a bathroom at his parents’ home. The camera was positioned underneath what appears to be a sink or vanity and was trained on the toilet. Footage from the camera captured Spoor’s son—one of the boys in the Camper Video—changing into a swimsuit and urinating and another boy, identified at trial as "Victim-3," urinating. The genitals of both children are visible in the Bathroom Video.

State authorities referred the case to the Department of Homeland Security ("DHS"). On December 21, 2012, Edward Williams, a DHS special agent, interviewed Spoor. As Agent Williams later recounted at trial, Spoor admitted to him that there was child pornography, which he had downloaded from the internet, on his computers and that he was attracted primarily to boys, aged approximately 13. He also admitted making the videos at issue in this case, but provided innocuous, nonsexual reasons for doing so. According to Williams, Spoor told him he made the videos to show "how silly the boys were being when they were together." A-359.

Spoor was indicted on April 11, 2013. On December 22, 2015, the Government provided notice that, pursuant to Rule 414(a) of the Federal Rules of Evidence, it intended to prove at trial that Spoor had previously committed an offense (or offenses) of "child molestation."³ Specifically, the Government sought to introduce: evidence that Spoor was convicted in 2013 of Criminal Sexual Act in the First Degree, in violation of New York Penal Law § 130.50(3) ;⁴ that he had admitted to molesting two seven-year-old boys sometime in 2010;⁵ testimony from a girl and an adult woman that Spoor had sexually abused them repeatedly when they were children; and testimony from a boy that Spoor had taken photos of him and another boy, naked, in a hotel room sometime in 2011. The District Court ruled that it would admit evidence of Spoor’s 2013 conviction, but precluded the Government’s other Rule 414 evidence on the grounds that the risk of undue prejudice from this evidence outweighed its marginal probative value.

The case proceeded to trial on January 6, 2016. As is relevant to Spoor’s arguments on appeal, the Government relied on the testimony of the agents who examined Spoor’s hard drives, the agents who interviewed him, and the videos themselves. The mothers of the three boys in the videos also testified. The mother of Spoor’s son, Robin Cooley, testified that her son was born in June 2002 and appeared to be "around seven or eight" years old in the Camper Video, and "at least eight" in the Bathroom Video. A-688-89. Cooley also testified that, based on her recollection, the Camper Video would have been made around her son’s tenth birthday in June 2012. The mother of the other boy in the Camper Video testified that he was born in January 2002 and appeared to be "approximately eight or nine" in the Camper Video. A-704. The mother of the second boy in the Bathroom Video testified that he was born in April 2007, and therefore was four or five at the time the Bathroom Video was made.

The jury found Spoor guilty on all counts. On August 15, 2016, the District Court sentenced him principally to 360 months of imprisonment. In explaining the sentence, the District Court began by calculating Spoor’s Guidelines range as 360 and 1200 months of incarceration—a point Spoor concedes on appeal.⁶ Taking the Guidelines range as a baseline, the District Court rejected Spoor’s argument that a below-Guidelines sentence was appropriate in light of his age—Spoor was 52 at the time of sentencing—and because neither of the videos depicts sexual contact or involves lewd or suggestive posing. The District Court explained that, in its view, Spoor’s case was within the "heartland of cases" and characterized his conduct as "deplorable." SPA-36-37. The District Court further found that Spoor’s conduct was "indicative of a manifestation of continuing sexual exploitation" and that Spoor was, in the District Court’s judgment, "really socially depraved and morally bankrupt." SPA-38. Addressing Spoor’s argument that his age made him less likely to recidivate, the District Court explained that, in its view, "anything less [than 360 months] might subject children, even perhaps at your [Spoor’s] advanced age, to some danger." SPA-40.

This appeal followed.

II. DISCUSSION

On appeal, Spoor challenges the sufficiency of the evidence, the District Court’s decision to admit his 2013 conviction, and the substantive reasonableness of his sentence. We address each of these arguments in turn.

A.

This court reviews a claim related to the sufficiency of the evidence de novo. United States v. Cuti , 720 F.3d 453, 461 (2d Cir. 2013). Nonetheless, a defendant raising such a challenge carries a "heavy burden." United States v. Santos , 449 F.3d 93, 102 (2d Cir. 2006) (quoting United States v. Bruno , 383 F.3d 65, 82 (2d Cir. 2004) ) (additional citation omitted). The Court must view the evidence in the light most favorable to the prosecution and must draw all inferences in favor of the Government. Id. Accordingly, "[a] judgment of acquittal can be entered ‘only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.’ " Cuti , 720 F.3d at 461 (quoting United States v. Espaillet , 380 F.3d 713, 718 (2d Cir. 2004) ). "In a close case, where ‘either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, the court must let the jury decide the matter.’ " Id. (quoting United States v. Temple , 447 F.3d 130, 137 (2d Cir. 2006) ). But it remains "axiomatic that[ ] ‘it would not satisfy the Constitution to have a jury determine that the defendant is probably guilty.’ " United States v. Rodriguez , 392 F.3d 539, 544 (2d Cir. 2004) (quoting Sullivan v. Louisiana , 508 U.S. 275, 278, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) ) (alterations omitted).

We reject Spoor’s argument that there was insufficient evidence from which a jury could conclude that the Camper Video and Bathroom Video constituted child pornography. As is set out in the margin above, Section 2251(a) criminalizes the "use" (among other things) of a minor to engage in "sexually explicit conduct for the purpose of producing any visual depiction of such conduct ...." 18 U.S.C. § 2251(a). As far as the production counts are concerned, the only issue presented to the jury was whether the videos depicted "sexually explicit conduct," as that term is defined by Section 2256(2)(A), and, more specifically, whether the videos were "lascivious exhibition[s] of the genitals or pubic area of any person," Id . § 2256(2)(A)(v). The statute does not define a "lascivious exhibition." The District Court, relying on the so-called Dost factors, instructed the jury that in determining whether the videos constituted a "lascivious exhibition" it was to consider:

[S]uch factors as, one, whether the focal point of the picture or image is on the child’s genitals or pubic area; two, whether the setting of the picture or image is sexually suggestive, that is, in a place or pose generally associated

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