United States v. Terrell

• Decision Date: 05 November 2012
• Docket Number: No. 11–50602.,11–50602.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. John Ray Edward TERRELL, also known as John Ray Terrell, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

700 F.3d 755

UNITED STATES of America, Plaintiff–Appellee,

v.John Ray Edward TERRELL, also known as John Ray Terrell, Defendant–Appellant.

No. 11–50602.

United States Court of Appeals, Fifth Circuit.

Nov. 5, 2012.

Joseph H. Gay, Jr. (argued), Mark Randolph Stelmach, Asst. U.S. Attys., San Antonio, TX, for Plaintiff–Appellee.

Catherine Michelle Ferguson–Gilbert (argued), Howard, Gilbert & Smith, Copperas Cove, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before BENAVIDES, OWEN and SOUTHWICK, Circuit Judges.

PER CURIAM:

Before the Court is Defendant John Ray Edward Terrell's (“Defendant–Appellant Terrell”) appeal of his conviction for one count of producing child pornography and sexually exploiting a child, in violation of 18 U.S.C. § 2251(a) & (e), and one count of knowingly possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and 2256(8)(A). We AFFIRM.

Factual and Procedural Background

On June 12, 2007, a federal indictment charged Defendant–Appellant Terrell with producing child pornography in violation of 18 U.S.C. § 2251(a) and (e) and with knowing possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(5)(B), 2252A(b)(2), and 2256(8)(A). The trial testimony established the following: The victim was ST, the daughter of Suzanne Terrell and John Ray Doby Terrell (“John Terrell”). Defendant–Appellant Terrell is John Terrell's father and ST's grandfather. During the summer of 2003, Defendant–Appellant Terrell took pornographic photos of ST while she was left in his care. When ST later reported the abuse to her mother, Suzanne Terrell contacted Child Protective Services. An investigation was launched, and police conducted a search of Defendant–Appellant Terrell's property. A floppy disk was recovered with files related to Defendant–Appellant Terrell's business, and a file referring to “Young Strawberry Blondes, Young Lolitas, TV, Underage Models, Preteen X, [and] Lolita Virgins.”

Following the initial search, John Terrell went to his father's home to hide weapons he knew were on the property. John Terrell had access to his father's home because he assisted his father in his father's business. In attempting to hide a gun in a concealed compartment, John Terrell discovered a laptop located therein. John Terrell discovered pornographic images of ST on the computer, as well as other child pornography. He informed police, who performed a second search and seized the laptop. John Terrell also provided the police with a second laptop he recovered from a trailer on the property.

In 2005, police learned that Defendant–Appellant Terrell had fled the country. The police located him in Ecuador and he was arrested in September 2010. He was thereafter returned to the United States and placed in the custody of United States marshals at the airport.

At trial, John Terrell identified the location of the photos as Defendant–Appellant Terrell's bedroom. He testified that he, John Terrell, had not taken the photographs or put those photographs on the laptop. He further testified that he did not use Defendant–Appellant Terrell's laptops prior to discovering them. ST testified about the photographs, identifying herself therein and Defendant–Appellant Terrell as the photographer. She further testified that she had asked Defendant–Appellant Terrell about the photographs and that he had informed her that he had deleted them. A Secret Service Agent who had conducted a forensic examination of the laptops testified that he found the images of ST in the computer's “trash can,” and that they had been put there soon after the photos of ST had been taken. The Agent further testified that, in addition to the images of ST, he found 751 images of child pornography on the first laptop, and 137 images of child pornography on the second laptop. The Agent opined that the images were likely obtained from the internet, and he testified that the laptops had been used to visit sites that advertised or allowed users to download child pornography. Evidence also established that the laptops were manufactured outside of Texas.

At the close of the prosecution, Defendant–Appellant Terrell moved for a judgment of acquittal, which the district court denied. A jury convicted Defendant–Appellant Terrell on both counts. The district court sentenced Defendant–Appellant Terrell to 360 months of imprisonment on Count One and 120 months of imprisonment on Count Two, the sentences to be served consecutively. This timely appeal followed.

Analysis

Defendant–Appellant Terrell raises a number of challenges to his conviction. First, he argues that the government must, and did not, show that he knew or should have known the laptop which contained the images of ST traveled in interstate commerce. Second, he argues that the district court wrongly denied his motion for acquittal because there was no evidence that he transferred the images of ST to the laptop, and that a jury instruction stating the government did not need to prove the identify of the individual who placed the images on the computer was erroneous. Third, he argues that the government introduced insufficient evidence to show he knowingly possessed child pornography. For the reasons stated below, his arguments are unavailing.

I. Knowledge of Interstate Commerce

First, Defendant–Appellant Terrell argues that the district court erred in denying his motion for acquittal because the government failed to introduce evidence showing that he knew or should have known that the pornographic images of ST were produced on a camera or computer that traveled in interstate commerce. The government argues that it is not necessary to prove knowledge of this particular interstate commerce element under 18 U.S.C. § 2251(a). This court reviews a district court's denial of a motion for acquittal de novo. United States v. Bennett, 664 F.3d 997, 1011–12 (5th Cir.2011). The Court finds the government's reading more persuasive and holds that § 2251(a) does not require knowledge of the interstate nature of the materials used to produce the images of ST.

Under 18 U.S.C. § 2251(a), the government must prove that the defendant (1) employed, used, persuaded, induced, enticed, or coerced a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct; and (2) a jurisdictional nexus. 18 U.S.C. § 2251(a) (West 2003). As to the jurisdictional nexus element, it may be satisfied:

[(a)] if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, [(b)] if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or [(c)] if such visual depiction has actually been transported in interstate or foreign commerce or mailed.

Id. The Defendant–Appellant argues that the knowledge element—“knows or has reason to know”—applies to each of the three possible ways that the element can be satisfied.¹

Nevertheless, the more natural reading of this statute is that knowledge must be proven only as to the first jurisdictional hook. See Flores–Figueroa v. United States, 556 U.S. 646, 652, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009) (“The manner in which the courts ordinarily interpret criminal statutes [should be] fully consistent with ... ordinary English usage.”); see also United States v. Betancourt, 586 F.3d 303, 308–09 (5th Cir.2009) (applying Flores–Figueroa and adopting a “common-sense, natural reading” of a statute). Here, the statute's repetition of “if” indicates that each clause following the “if” is distinct. The phrase “knows or has reason to know” follows the first “if,” implying that the phrase is only to be applied to the first clause and not to the latter two. Finally, the use of the disjunctive “or” further indicates that the “knows or has reason to know” applies only to the first item in the list.

The Defendant–Appellant cites no authority for his argument that the “knowledge” requirement applies to all three jurisdictional elements, and indeed, an identical argument was rejected by the Eleventh Circuit. In United States v. Smith, the Eleventh Circuit stated that the “most natural reading of this provision” is that “[o]nly the first basis for jurisdiction requires any proof of mental state.” See459 F.3d 1276, 1289 (11th Cir.2006).

Moreover, and importantly, courts have been consistent in not applying the mens rea of statutes to federal jurisdictional elements, unless the language of the statute requires such a result. For example, in United States v. Yermian, in a prosecution for making false statements to a federal officer in violation of 18 U.S.C. § 1001, the Supreme Court held that the “knowingly” and “willfully” intent requirements did not apply to the federal jurisdictional element— i.e., that the false statement was made to a federal officer. See468 U.S. 63, 74–75, 104 S.Ct. 2936, 82 L.Ed.2d 53 (1984); see also United States v. Feola, 420 U.S. 671, 693–96, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975) (finding that federal conspiracy statute did not require knowledge that intended victim of conspiracy was a federal officer because conduct is not “any less blameworthy ... because the participants are unaware which body of law they intend to violate”). These holdings have been consistently reaffirmed in a variety of contexts . See, e.g., United States v. Jimenez, 256 F.3d 330, 338 n. 9 (5th Cir.2001) (defendant not required to have knowledge of building's effect on interstate commerce under federal arson statute); United States v. Jackson, 978 F.2d 903, 909–11 (5th Cir.1992) (defendant did not need to know victim was transported across state lines under federal kidnaping statute); United States v. Dancy, 861 F.2d 77, 81 (5th Cir.1988) (in felon in possession of a firearm prosecution, defendant not...