United States v. Anderton , 136 F.3d 747 ( 1998 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 97-6236
Non-Argument Calendar
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D. C. Docket No. CR-96 B-285-NE
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
T. GLENN ANDERTON, a.k.a. Thomas Glenn Anderton,
REBA SUE ANDERTON,
Defendants-Appellants.
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Appeals from the United States District Court
for the Northern District of Alabama
_________________________
(March 4, 1998)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Appellants T. Glenn Anderton (“Mr. Anderton”) and Reba Sue Anderton (“Mrs. Anderton”)
were convicted by a jury of one count of receiving by mail a visual depiction of a minor engaged
in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2), and one count of using the mail
for delivery of nonmailable material, in violation of 18 U.S.C. § 1461. In addition, Mr. Anderton
was convicted of one count of possessing material involving minors engaged in sexually explicit
conduct, in violation of 18 U.S.C. § 2252(a)(4)(B).
1. Validity of the Government’s Search Warrant
Mr. Anderton argues that the district court erred in failing to suppress evidence seized during
the search of his home. According to Mr. Anderton, postal inspector Beryl Hedrick either
intentionally or recklessly included false statements in his affidavit submitted in support of his
application for a search warrant, and, without these allegedly false statements, no probable cause
existed to issue the search warrant, making the search and its fruits illegal. Specifically, Mr.
Anderton contends that Inspector Hedrick misled the magistrate judge into believing that he had
personal knowledge of what was in the Andertons’ residence and that the contraband videotape had
been received and was inside the residence.
Rulings on motions to suppress evidence involve mixed questions of law and fact. We
review factual findings for clear error and the application of the law to the facts de novo. United
States v. Reid, 69 F.3d 1109, 1113 (11th Cir. 1995). If a defendant demonstrates by a preponderance
of the evidence that an affidavit used to procure a search warrant contains intentionally or recklessly
false statements and that, the false statements aside, the affidavit is insufficient to establish probable
cause, the district court must void the search warrant and exclude the fruits of the search. Franks
v. Delaware, 438 U.S. 154, 155-56 (1978).
A review of the record indicates that Mr. Anderton did not meet his burden of demonstrating
that Inspector Hedrick made false statements in his affidavit. Inspector Hedrick’s affidavit fairly
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and accurately presented the information gathered in the investigation of the Andertons up to the
time of the application. Among other things, Inspector Hedrick stated that he had corresponded with
the Andertons and they not only expressed an interest in obtaining videotapes depicting minors
engaged in sexual activity, but also indicated that they had some photographs and videotapes they
would be willing to trade. In addition, the affidavit indicated that the Anderton investigation had
uncovered an incident report and victim statement alleging that Mr. Anderton had raped a 15-year-
old girl in the residence, during which Mr. Anderton took at least one sexually explicit photograph
of the minor. Furthermore, Inspector Hedrick averred that the information in his affidavit was
based upon his own personal knowledge and “observations by and conversations with and reports
of other law enforcement officers.” See United States v. Kirk, 781 F.2d 1498, 1505 (11th Cir. 1986)
(stating that “[o]bservations of fellow officers of the Government engaged in a common
investigation are plainly a reliable basis for a warrant applied for by one of their number” as long
as the affiant states that he is relying on other officers in the affidavit).
Contrary to Mr. Anderton’s assertions, Inspector Hedrick did not state that he had personal
knowledge of the presence of child pornography in the Anderton residence. Reading the affidavit
as a whole, it is clear the target of the search was not the contraband videotape sent to the Andertons
as part of the sting operation. Instead, Inspector Hedrick sought a warrant to search the Andertons’
residence for: (1) a check stub or check register corresponding to the check used to purchase the
contraband videotape, and (2) the sexually oriented photograph and videotape collection offered for
trade in the Andertons’ correspondence. In fact, Inspector Hedrick informed the magistrate judge
that, although he had mailed a videotape containing child pornography to the Andertons’ post office
box, he intended to execute the search warrant “whether or not the package is delivered....”
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Mr. Anderton presented no evidence that Inspector Hedrick’s affidavit was misleading or
false. Furthermore, the information in the affidavit was sufficient to establish probable cause to
issue the warrant. Consequently, the district court’s decision to deny Mr. Anderton’s motion to
suppress was not clearly erroneous.
2. Denial of Mrs. Anderton’s Motions for Judgment of Acquittal
Mrs. Anderton argues that the district court erred in denying her motions for judgment of
acquittal. According to Mrs. Anderton, the government did not establish beyond a reasonable doubt
that the videotape she possessed depicted a minor, as opposed to an adult, engaging in sexually
explicit conduct. We review a denial of a motion for judgment of acquittal based on the sufficiency
of the evidence, viewing the evidence in a light most favorable to the government. United States
v. McKinley, 995 F.2d 1020, 1025 (11th Cir. 1993). If any reasonable construction of the evidence
allowed the jury to find the defendant guilty beyond a reasonable doubt, we must affirm the
conviction. Id.The government’s expert witness, Dr. Marsha Sturdevant, a medical doctor with expertise
in adolescent growth and development, testified that, in her opinion, the children depicted in the
videotape were between the ages of eleven and fifteen and a half. The Andertons’ expert witness,
Dr. Jack Turner, a clinical psychologist and sex therapist, testified that, in his opinion, the ages of
the individuals in the videotape could not be determined because the pornography industry is
“notorious for picking young looking people.” However, Dr. Turner admitted on cross examination
that he had no medical training or experience evaluating female adolescent growth and development.
This evidence was sufficient to submit the matter to the jury for a determination. The jury
was free to evaluate both experts’ testimony and conclude that the government’s expert was more
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reliable and credible. See United States v. Parrado, 911 F.2d 1567, 1571 (11th Cir. 1990). Because
a reasonable jury could have found that the evidence established Mrs. Anderton’s guilt beyond a
reasonable doubt, the district court did not err in denying Mrs. Anderton’s motion for judgment of
acquittal.
3. Increase in Both Andertons’ Offense Levels at Sentencing
Both appellants challenge the district court’s decision to increase their offense levels by five
levels because they “engaged in a pattern of activity involving the sexual abuse or exploitation of
a minor.” See U.S.S.G. § 2G2.2(b)(4).1 The Andertons contend that the activities supporting the
enhancement were unrelated to the offense of conviction because they did not involve exploitation
of a minor for the purpose of producing a visual depiction of sexually explicit conduct, and, thus,
cannot be considered under U.S.S.G. § 2G2.2(b)(4). We review the application of an enhancement
under the Sentencing Guidelines de novo. United States v. Taylor, 88 F.3d 938, 942 (11th Cir. 1996).
Section 2G2.2(b)(4) provides for a five level increase in a defendant’s offense level when
the court finds that the defendant “engaged in a pattern of activity involving the sexual abuse or
exploitation of a minor.” The commentary to § 2G2.2, applicable at the time the Andertons
committed their offenses, defined such a pattern as “any combination of two or more separate
instances of the sexual abuse or exploitation of a minor, whether involving the same or different
victims.” See U.S.S.G. § 2G2.2, cmt. n.4 (1995). However, effective November 1, 1996, this
commentary was amended to clarify that the “pattern of activity” may include acts of sexual abuse
1
At the sentencing hearing, numerous minor female witnesses recounted incidents in
which the Andertons either engaged in sexual conduct with them or attempted to induce them to do
so.
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or exploitation that were not committed during the course of the offense or that did not result in a
conviction. See U.S.S.G. § 2G2.2, cmt. n.1 (1996).2
“It is now well-settled in this circuit that ‘the sentencing court should consider clarifying
amendments when interpreting the guidelines, even when sentencing defendants convicted before
the effective date of the amendments.’” United States v. Howard, 923 F.2d 1500, 1504 (11th Cir.
1991) (quoting United States v. Marin, 916 F.2d 1536, 1538 (11th Cir. 1990) (per curiam)). Thus,
the district court properly considered the amended commentary in interpreting §2G2.2.
The district court found that the 1996 amendment made clear that the Sentencing
Commission did not intend to limit the pattern of activity the court could consider to conduct related
to the offense of conviction. (R17-48). We agree. Because the language of the clarifying
amendment clearly permits an increased offense level for conduct unrelated to the offense of
conviction, the district court did not err in increasing the Andertons’ offense levels.
4. Mr. Anderton’s Upward Adjustment at Sentencing
2
Amended Application Note 1 to Section 2G2.2 states in relevant part:
“Pattern of activity involving the sexual abuse or exploitation of a minor” means any
combination of two or more separate instances of the sexual abuse or sexual
exploitation of a minor by the defendant, whether or not the abuse or exploitation (A)
occurred during the course of the offense....
U.S.S.G. § 2G2.2, cmt. n.1 (1996). Prior to this 1996 clarifying amendment, two circuit courts held
that the conduct courts may consider under §2G2.2(b)(4) must relate to the offense of conviction.
See United States v. Surratt, 87 F.3d 814, 817-19 (6th Cir. 1996); United States v. Chapman, 60 F.3d
894, 900-01 (1st Cir. 1995). These courts relied in large part upon the fact that the application note
did not state clearly that the conduct did not have to occur during the course of the offense, even
though another application note under the same guideline did contain such a statement. See
Chapman, 60 F.3d at 901. The 1996 amendment to the application note directly addressed this
concern by inserting substantially the same statement.
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Mr. Anderton also argues that the evidence concerning his abuse of his five-year-old
stepdaughter, introduced through the state child abuse investigator’s testimony, was unreliable
hearsay and, therefore, not a proper basis for an upward departure. We review a district court’s
decision to depart from the guidelines for abuse of discretion. Koon v. United States, 518 U.S. 81,
__, 116 S. Ct. 2035, 2047 (1996).
Even if the defendant received an offense level increase under § 2G2.2(b)(4), the
commentary to U.S.S.G. § 2G2.2 also permits an upward departure where a defendant engaged in
the sexual abuse or exploitation of a minor. U.S.S.G. § 2G2.2, cmt. n. 5 (1995). Furthermore, a
court may rely on hearsay at sentencing, as long as the evidence has sufficient indicia of reliability,
the court makes explicit findings of fact as to credibility, and the defendant has an opportunity to
rebut the evidence. United States v. Lee, 68 F.3d 1267, 1276 (11th Cir. 1995); United States v.
Query, 928 F.2d 383, 384-85 (11th Cir. 1991). At the sentencing hearing, Anderton’s counsel had
an opportunity to cross examine the investigator. Additionally, the court made explicit findings as
to the credibility of the investigator’s testimony and the reliability of the stepdaughter’s statements.
These findings are not clearly erroneous. Accordingly, the district court did not abuse its discretion
in departing from the guidelines.3
Although we find that appellants’ judgments and sentences are correct, we notice that there
is a clerical error in the judgment and commitment order of Mr. Anderton, which states that he was
convicted of possessing sexually explicit materials involving minors and cites 18 U.S.C. §
3Mr. Anderton also argues that the district court’s reliance on his stepdaughter’s
statements deprived him of his Sixth Amendment right to confront witnesses. Because Mr.
Anderton did not raise this argument before the district court, however, he has waived it on appeal.
See United States v. Simpson, 904 F.2d 607, 611 (11th Cir. 1990).
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2242(a)(4)(B). However, § 2242(a)(4)(B) defines sexual abuse. The crime of possessing sexually
explicit materials involving minors is codified at 18 U.S.C. § 2252(a)(4)(B), which is the code
section cited in the PSI and indictment.
Accordingly, we remand to the district court with directions to correct the clerical error
contained in Mr. Anderton’s judgment and commitment order.
AFFIRMED IN PART; REMANDED IN PART.
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