USA. v. Snyder

• Decision Date: 02 September 1999
• Docket Number: No. 98-2574,98-2574
• Citation: 189 F.3d 640
• Parties: (7th Cir. 1999) United States of America, Plaintiff-Appellee, v. James W. Snyder, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 640

189 F.3d 640 (7th Cir. 1999)

United States of America, Plaintiff-Appellee, v. James W. Snyder, Defendant-Appellant.

No. 98-2574

United States Court of Appeals, Seventh Circuit

Argued April 16, 1999

Decided September 2, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 CR 62--George W. Lindberg, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Posner, Chief Judge, and Bauer, and Rovner, Circuit Judges.

Bauer, Circuit Judge.

James W. Snyder was convicted of producing, receiving, and distributing child pornography, as well as possessing child pornography with intent to sell. On appeal, he argues that: (1) the district court should have granted his request for a psychological examination to determine the competency of the victim; (2) the district court should not have given the jury a supplemental instruction that included "trade" in the definition of "sale"; (3) the district court should have dismissed two counts in the indictment for multiplicity; (4) the district court should have allowed the defense to give its own example of circumstantial evidence during its closing argument; and (5) the district court should not have applied obstruction of justice and vulnerable victim sentence enhancements. Because we find that none of these arguments have merit, we affirm the district court's judgment in all respects.

I. Background

On Friday, October 11, 1996, an eleven-year-old boy who we will call Michael Doe ("Doe") accepted an invitation to sleep over at his friend Ducky's house. That evening, John Lock, who was Ducky's sister's boyfriend, gave Doe marijuana and Mountain Dew mixed with beer. Doe fell asleep in a bedroom while Ducky fell asleep in the living room. Lock spent the night engaging in various sexual acts with Doe.

The following morning, Doe told Lock that he had to leave to do his Saturday paper route. Lock offered to deliver the papers and told Doe to get into his car. Once in the car, Doe fell asleep. When he woke up, he realized that Lock had taken him from Indiana to Chicago. After they checked into a hotel, Lock phoned Snyder and then took a shower with Doe. After Snyder arrived at the hotel, the three went to Snyder's house at 1518 Plainfield Road in LaGrange, Illinois.

Once at Snyder's house, Doe was given marijuana, alcohol, and "poppers," a muscle relaxant used to enhance sexual pleasure. Snyder then showed Doe pornographic videos, as well as pictures of naked children that had been downloaded from America Online. Eventually, either Lock or Snyder asked Doe to remove his clothes. While Lock took a nap, Snyder engaged in oral and anal sexual acts with Doe. Later that day, Lock engaged in oral and anal sexual acts with Doe while Snyder photographed the two with a camera that was hooked up to his computer. In the evening, Snyder again had oral sex with Doe. According to Doe, Snyder also showed him several pistols and rifles and threatened to kill him if he told anyone what they had been doing. Sometime during the course of the weekend, Snyder asked Doe when it was that Doe first had sex with a boy. Doe told Snyder that he had been raped when he was eight years old. On Sunday, Lock and Doe left for Indiana. Snyder kept Doe's underwear.

Almost as soon as Doe got home, he was interviewed by FBI agents who had been contacted earlier by his parents. Doe was able to describe the landmarks he had seen in sufficient detail to enable the agents to locate Snyder's house and obtain a search warrant. As the agents approached the house to execute the warrant, they observed Snyder through the window typing at his computer. Snyder later admitted that he had been told that the FBI was looking for him. Upon executing the search warrant, FBI agents recovered a computer, a computer camera, several rifles, two pistols, and numerous computer discs. They also retrieved Doe's underwear. After being taken into custody, Snyder admitted that he had watched Lock engage in anal sex with Doe, but claimed that he had told Lock not to hurt Doe. Snyder also claimed that it was Lock who had projected the pornographic images of Doe over the Internet.

The computer-related evidence seized from Snyder's house was analyzed by the FBI crime lab in Washington, D.C. Mary Horvath, an analyst at the lab, verified that Snyder's computer was capable of downloading and uploading images from the Internet, and that it could be hooked up to a camera. Horvath also recovered several pornographic images from the computer, even though they had been deleted. In addition, by tracking Snyder's activities on America Online, Horvath was able to determine that Snyder had multiple user accounts (including one named "Boy Doer"), that Snyder had received at least one pornographic image from America Online on Sunday, October 13, 1996 at 1:54 p.m., and that Snyder's collection of pornographic pictures had been downloaded from America Online over a period of eight or nine months. The America Online records also showed activity that suggested that pornographic images of Doe had been produced while Snyder was online. Finally, an examination of Snyder's incoming e-mail revealed a message entitled "for my trading buds," to which a pornographic image file was attached.

On January 31, 1997, a federal grand jury returned a six-count indictment against Snyder. The district court subsequently dismissed counts 5 and 6, but declined to dismiss counts 3 and 4. Counts 1 through 4 charged Snyder with producing child pornography, in violation of 18 U.S.C. sec. 2251(a)(2), receiving child pornography, in violation of 18 U.S.C. sec. 2252(a)(2), distributing child pornography, in violation of 18 U.S.C. sec. 2252(a)(2), and possessing child pornography with intent to sell, in violation of 18 U.S.C. sec. 2252(a)(3)(B). Each count also charged Snyder with aiding and abetting under 18 U.S.C. sec. 2.

Before the trial began, Snyder requested that Doe be given a psychological examination to determine his competence to testify. In support of this request, Snyder claimed that Doe was unable to differentiate between reality and fantasy, as evidenced by Doe's unfounded statements that Lock had taken him to the Museum of Science and Industry and had beaten up a biker using karate. Snyder also asserted, on information and belief, that Doe was taking anti- depressant drugs that could affect his competency. The district court declined to order the examination.

On September 22, 1997, Snyder proceeded to trial. In the district judge's opening remarks to the jury, he defined circumstantial evidence and illustrated the concept by explaining that the existence of snow on the ground in the morning is circumstantial evidence that it snowed during the night. The defense did not object. During closing arguments, however, Snyder's attorney attempted to provide his own example of circumstantial evidence in order to illustrate that it can be unreliable. The government objected, and the district judge sustained the objection. The judge subsequently used Seventh Circuit Pattern Jury Instruction No. 3.02 to instruct the jury about circumstantial evidence. Again, the defense did not object.

Circumstantial evidence played an important role at trial because the jury was presented with conflicting testimony. For example, Doe testified that Snyder had shown him rifles and pistols and threatened him not to tell anyone about the weekend, that Lock had taken him to the Museum of Science and Industry, and that Lock had been in a fight with a biker. Lock, who was a cooperating witness for the government, denied that Snyder had threatened Doe, and denied that he had taken Doe to the Museum of Science and Industry or been in a fight. Lock explained that he had promised to take Doe to the Museum of Science and Industry, and that he kept numerous karate posters and uniforms in his room, but that neither the trip to the museum nor the fight had actually taken place. Vince Blazina, Snyder's "marriage partner," testified that Snyder was afraid of guns and never touched them.

After the jury began deliberating, it sent the judge a note asking whether trading is considered selling. Although the judge initially resolved to direct the jurors to rely on their common sense and on the instructions that they had already been given, he ultimately provided the jury with a dictionary definition of the term "sale" that included the term "trade."

On September 29, 1997, the jury convicted Snyder on all four counts. On June 11, 1998, the district court sentenced Snyder to 168 months of imprisonment and six years of supervised release. This sentence included an obstruction of justice enhancement and a vulnerable victim enhancement. Snyder appeals his conviction and sentence.

II. Discussion

A. Competency Examination

Children are presumed to be competent to testify. 18 U.S.C. sec. 3509(c)(2). Accordingly, a "competency examination regarding a child may be conducted only if the court determines, on the record, that compelling reasons exist," 18 U.S.C. sec. 3509(c)(4), and "only upon written motion and offer of proof of incompetency by a party," 18 U.S.C. sec. 3509(c)(3). Furthermore, "[p]sychological and psychiatric examinations to assess the competency of a child witness shall not be ordered without a showing of compelling need." 18 U.S.C. sec. 3509(c)(9). As long as a witness has the capacity to testify truthfully, it is best left to the fact-finder to determine whether he in fact did so. See Fed. R. Evid. 601, Advisory Notes (noting that unless witness is wholly without capacity, the question is one of credibility and weight); United States v. Zizzo, 120 F.3d 1338, 1347 (7th Cir. 1997), cert. denied, Marcello v. United States, ___ U.S. ___, 118 S.Ct. 566 (1997) ("Rather than rendering him incompetent to testify without some sort of psychiatric examination, [a witness'] penchant for perjury simply provide[s] the defense...