United States v. Anthony Palomino-Coronado , 805 F.3d 127 ( 2015 )


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  •                                 PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 14-4416
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    ANTHONY PALOMINO-CORONADO,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
    (8:12-cr-00287-RWT-1)
    Argued:   September 17, 2015                Decided:   November 5, 2015
    Before MOTZ, KING, and GREGORY, Circuit Judges.
    Reversed and vacated by published opinion. Judge Gregory wrote
    the opinion, in which Judge Motz and Judge King joined.
    ARGUED: Joanna Beth Silver, OFFICE OF THE FEDERAL PUBLIC
    DEFENDER, Baltimore, Maryland, for Appellant.    Kristi Noel
    O’Malley, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
    Maryland, for Appellee.  ON BRIEF: James Wyda, Federal Public
    Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
    Maryland, for Appellant.   Rod J. Rosenstein, United States
    Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
    Maryland, for Appellee.
    GREGORY, Circuit Judge:
    Anthony        Palomino-Coronado           was   convicted     of        knowingly
    employing, using, persuading, inducing, enticing, or coercing a
    minor in sexually explicit conduct, for the purpose of producing
    a visual depiction of that conduct, in violation of 18 U.S.C.
    § 2251(a).     On appeal, Palomino-Coronado claims that there was
    insufficient evidence to convict him and that the district court
    improperly denied his motion for judgment of acquittal under
    Federal Rule of Criminal Procedure 29.                We agree. 1
    I.
    In the early morning hours of May 3, 2012, Prince George’s
    County     police       officers    were     called   to    a   home     in     Laurel,
    Maryland, in response to a report of a missing seven-year-old
    child.     Officers eventually found the child, B.H., outside the
    house next to a fence adjoining the neighbor’s yard.                      B.H. said
    that she had been next door hanging out with a friend.
    Interviews with B.H. led the police to bring her to the
    hospital    for     a    sexual    assault      forensic   exam.       Nurse    Sharon
    Rogers performed the exam and found that B.H.’s hymen had been
    1 Palomino-Coronado further contends that the district court
    erred by failing to take adequate steps to ensure that an
    expert’s dual role did not prejudice or confuse the jury and
    that his sentence was procedurally unreasonable, issues we do
    not reach here.
    2
    torn,    indicating         that      it   had    been     penetrated.         Rogers       also
    identified       an     odor,         redness,       and       irritation,      which       were
    consistent      with       an    infection.          Rogers       determined      that      B.H.
    likely could not have gotten this type of infection from sexual
    activity in the hours preceding the exam, suggesting that sexual
    activity had also occurred previously.                          Rogers also interviewed
    B.H.        During the interview, B.H. said that she had been at
    “Anthony’s” house that night, that she had been there about ten
    times       previously,         and    that      they    would     spend      time    in     his
    basement.           Palomino-Coronado,            then     nineteen       years      old,    was
    B.H.’s neighbor.
    Following the exam, Detective Cleo Savoy interviewed B.H.
    The two first spoke privately for about an hour and a half and
    were then joined by B.H.’s guardian; at that point, Savoy began
    to record the interview.                   During the unrecorded portion of the
    interview,      Savoy       testified        that    B.H.      said   that     she    went    to
    Palomino-Coronado’s             house,       where      they     played      games    in     the
    basement, Palomino-Coronado kissed her, and they had sex.                                   B.H.
    also    said    that       Palomino-Coronado            took    pictures.         During     the
    recorded portion of the interview, B.H. denied having any sexual
    contact with Palomino-Coronado.
    On     May     3,     2012,         Prince       George’s      County      detectives
    interviewed Palomino-Coronado and swore out a search warrant on
    his residence.         The police also seized Palomino-Coronado’s cell
    3
    phone.       Later that day, a communications specialist with the
    Prince George’s County Police Department extracted deleted and
    undeleted images from Palomino-Coronado’s cell phone, including
    one picture of a male lying on top of a paisley-patterned sheet
    while vaginally penetrating a child.                         The extraction revealed
    that this particular image had been deleted.
    The FBI later conducted its own forensic image extraction
    from Palomino-Coronado’s cell phone, finding the same photo of a
    man    penetrating      a     child.     Other       images       were   also    recovered,
    including         thousands    of    Palomino-Coronado’s            face   and    at   least
    three other images of B.H. in non-sexually explicit contexts.
    On May 15, 2012, Martha Finnegan, an FBI child forensic
    interview specialist, interviewed B.H.                           During that interview,
    B.H.       told    Finnegan       that   she       had     had    sexual   contact       with
    Palomino-Coronado           and     identified       the    two     individuals     in   the
    picture as “B” for B.H. and “A” for Anthony.
    The government sought to indict Palomino-Coronado on one
    count:      knowingly         employing,       using,            persuading,      inducing,
    enticing, and coercing a minor to engage in sexually explicit
    conduct for the purpose of producing a visual depiction of such
    conduct in violation of 18 U.S.C. § 2251(a). 2
    2
    At oral argument, the government acknowledged that an
    indictment was pending in state court for various state-law
    (Continued)
    4
    At trial, B.H. testified that Palomino-Coronado had touched
    her private parts on more than one occasion.                      She also testified
    that she was scared during her initial interview with the police
    and had lied to them.         She then identified herself and Palomino-
    Coronado    in     the   pictures   from       his   cell    phone,     including   the
    sexually explicit photo.             B.H. also testified that during her
    interview with Savoy, Savoy told her that she could not go home
    if she kept denying that she and Palomino-Coronado had had sex.
    B.H. said that Savoy had taken her teddy bear away from her
    during   the     interview    because      she       was    not   answering    Savoy’s
    questions.
    Finnegan also testified, both as a lay witness and as an
    expert     in    child    forensic    interviewing.               As    part   of   her
    testimony, she evaluated the interview that Savoy conducted and
    explained that it was coercive and did not follow established
    protocols.       Finnegan also testified about her own interview of
    B.H., during which B.H. disclosed to her that B.H. and Palomino-
    Coronado     had    engaged    in    sexual      conduct      and      identified   the
    photograph.
    At the close of the government’s case, Palomino-Coronado
    made a motion for judgment of acquittal based on insufficient
    crimes, which might well be supported by the unfortunate and
    horrific events that are at issue here.
    5
    evidence pursuant to Federal Rule of Criminal Procedure 29.                              The
    district court denied the motion.
    The jury subsequently found Palomino-Coronado guilty.                             The
    court sentenced him to thirty years, which was both the maximum
    permitted under the statute and the lowest amount of time within
    the guidelines range.            Palomino-Coronado timely appealed.
    II.
    We review a challenge to the sufficiency of the evidence de
    novo.     United States v. Engle, 
    676 F.3d 405
    , 419 (4th Cir.
    2012).      We     must    affirm    the    verdict    if        it    is   supported     by
    substantial evidence, viewed in the light most favorable to the
    government.        United States v. Gillion, 
    704 F.3d 284
    , 294 (4th
    Cir. 2012) (citing United States v. Reid, 
    523 F.3d 310
    , 317 (4th
    Cir.     2008)).          Substantial       evidence        is    “evidence       that     a
    reasonable       finder     of     fact     could    accept           as    adequate     and
    sufficient to support a conclusion of a defendant’s guilt beyond
    a reasonable doubt.”          United States v. Alerre, 
    430 F.3d 681
    , 693
    (4th Cir. 2005) (citation omitted).
    A defendant bringing a sufficiency challenge “must overcome
    a heavy burden.”           United States v. Hotye, 
    51 F.3d 1239
    , 1245
    (4th Cir. 1995).           The Court “may not overturn a substantially
    supported        verdict     merely        because     it        finds      the   verdict
    unpalatable or determines that another, reasonable verdict would
    6
    be preferable,” United States v. Burgos, 
    94 F.3d 849
    , 862 (4th
    Cir. 1996); instead reversal for insufficiency must “be confined
    to cases where the prosecution’s failure is clear,” Burks v.
    United States, 
    437 U.S. 1
    , 17 (1978).
    III.
    Palomino-Coronado   contends       that   the   government   failed   to
    prove one of the elements of § 2251(a)—namely, that he acted for
    the purpose of producing a visual depiction. 3
    Section 2251(a) provides, in relevant part,
    “Any person who employs, uses, persuades, induces,
    entices, or coerces any minor to engage in . . . any
    sexually explicit conduct for the purpose of producing
    any visual depiction of such conduct . . . shall be
    punished as provided under subsection (e) . . . if
    that visual depiction was produced or transmitted
    using materials that have been mailed, shipped, or
    transported in or affecting interstate or foreign
    commerce by any means.”
    18 U.S.C. § 2251(a).
    3 A week prior to oral argument, the government filed a
    letter of supplemental authority asserting that Palomino-
    Coronado waived his purpose argument by not raising it during
    his Rule 29 motion.    We are entitled to excuse a defendant’s
    waiver in the district court if the government fails to properly
    and timely raise a waiver contention in its brief.    See United
    States v. Ashford, 
    718 F.3d 377
    , 381 (4th Cir. 2013); United
    States v. Carthorne, 
    726 F.3d 503
    , 509 n.5 (4th Cir. 2013). In
    “the interests of fairness and the integrity” of our procedural
    rules, we hold that the government waived its waiver argument.
    See 
    Ashford, 718 F.3d at 381
    .
    7
    As the text indicates, § 2251(a) contains a specific intent
    element:     the government was required to prove that production
    of a visual depiction was a purpose of engaging in the sexually
    explicit conduct.         Id.; see United States v. Lebowitz, 
    676 F.3d 1000
    , 1013 (11th Cir. 2012).                “It is simply not enough to say
    ‘the photo speaks for itself and for the defendant and that is
    the end of the matter.’”                 United States v. Crandon, 
    173 F.3d 122
    , 129 (3d Cir. 1999) (discussing the purpose requirement in
    the related cross-reference under U.S.S.G. § 2G2(c)(1)).                                    That
    is, a defendant must engage in the sexual activity with the
    specific     intent      to   produce      a       visual   depiction;          it     is    not
    sufficient simply to prove that the defendant purposefully took
    a picture.       Nonetheless, courts do not require that a defendant
    be single-minded in his purpose to support a conviction under
    § 2251(a).       E.g., 
    Lebowitz, 676 F.3d at 1013
    ; United States v.
    Morales-de Jesus, 
    372 F.3d 6
    , 21–22 (1st Cir. 2004); see also
    United    States    v.     Cox,    
    744 F.3d 305
    ,   309          (4th   Cir.    2014)
    (considering “purpose” in the context of the application of a
    cross-reference under § 2G2.1(c)(1) of the sentencing guidelines
    governing production of some child pornography offenses).
    We    have    not     previously       considered          a    challenge       to      the
    sufficiency of the evidence in a conviction under § 2251(a).
    Courts    have    sometimes       been    able      to   rely       on    direct     evidence
    indicating a defendant’s purpose.                    E.g., 
    Lebowitz, 676 F.3d at 8
    1013.       In Lebowitz, for example, the minor testified that he and
    the defendant “discussed videotaping a sexual encounter prior to
    the recording.”          Id.; see also United States v. Lee, 
    603 F.3d 904
    ,    918     (11th     Cir.   2010)        (holding         that    the     defendant’s
    description of “how many photographs he wanted of each girl” and
    “how    he     wanted     the    girls        to     pose”      contributed          to    the
    reasonableness of the jury’s finding that he intended to use the
    minors in the production of child pornography).
    More     often,    however,       courts          are    presented      only       with
    circumstantial       evidence    to    show        that    a    defendant      acted      with
    purpose.       For example, defendants’ actions, instructions, and
    descriptions of the visual depictions produced or to be produced
    might indicate purpose.          E.g., Morales-de 
    Jesus, 372 F.3d at 21
    –
    22.     In Morales-de Jesus, finding the evidence sufficient, the
    First Circuit pointed to the fact that the defendant “actively
    concealed from the minor the fact that he was videotaping her.”
    
    Id. at 21.
       The    defendant     also       gave       “specific      instructions
    regarding certain positions he wanted her to assume relative to
    the    camera,     instructed    her     on       what    to   say    while    the    camera
    recorded their activities, and used a remote control to zoom the
    camera in and out while they were having sex.”                             
    Id. at 21–22;
    see also United States v. Sirois, 
    87 F.3d 34
    , 42 (2d Cir. 1996)
    (holding that the jury could have inferred intent in part based
    on the defendant’s “direct[ing] the participants to move their
    9
    sexual activity to different parts of the lean-to, so that he
    could more easily videotape them”).
    Courts   have    also    found   the   number   of   sexually   explicit
    recordings or depictions indicative of purpose.                   E.g., United
    States v. Ortiz-Graulau, 
    526 F.3d 16
    , 19 (1st Cir. 2008).                   In
    Ortiz-Gralau,    the    defendant      had    taken   over   fifty    pictures
    depicting sexual contact between him and a minor or of the minor
    in a sexually explicit position.             
    Id. at 18.
       The First Circuit
    found that the “number of photographs, many of sexually explicit
    poses, permit[ted] a strong inference that some of the conduct
    occurred in order to make the photographs.”                
    Id. at 19
    (citing
    Morales-de 
    Jesus, 372 F.3d at 22
    ); see also Morales-de 
    Jesus, 372 F.3d at 22
    (“[A] reasonable jury also could infer that since
    Morales taped sexual encounters with the minor more than once,
    he induced the girl to engage in sex acts for the purpose of
    creating videotapes of their encounters.”).
    Finally,   courts       have   considered   evidence   of    “purposeful
    conduct” surrounding the photographic or video equipment used.
    E.g., 
    Lebowitz, 676 F.3d at 1013
    ; see also Morales-de 
    Jesus, 372 F.3d at 22
    .      In Lebowitz, the Eleventh Circuit cited evidence
    that the defendant brought the camera and a tripod with him,
    carried them through the minor’s bedroom window, and set them
    
    up. 676 F.3d at 1013
    .          Moreover, evidence showed that “[t]he
    sexual encounter occurred in [the minor’s] bedroom only because
    10
    there was not room for the recording equipment in Lebowitz’s
    car.”         
    Id. Meanwhile, in
        Morales-de      Jesus,     “[a]fter     the
    defendant had taken the minor to a motel room to have sex for
    the    fourth       time,       he   returned      to   his   car    and    retrieved     the
    recording equipment that he kept 
    there.” 372 F.3d at 22
    .          The
    First Circuit also found that the fact that the defendant “kept
    sexual aids in the same bag with the camera” might also have
    been enough for the jury to find that the defendant had planned
    to videotape the encounters.                    Id.; see also 
    Sirois, 87 F.3d at 37
    , 42 (finding relevant that both actors had brought recording
    equipment:          one     a    camera     and    a    videorecorder       and    the   other
    another camera).
    Here, the evidence produced at trial does not support the
    conclusion      that        Palomino-Coronado           engaged     in   sexual     activity
    with B.H. for the purpose of producing a picture.                                  No direct
    evidence or statements indicating intent were offered.                                   There
    was no testimony that Palomino-Coronado gave any instruction or
    direction to B.H. as part of their sexual encounter that would
    indicate purpose.               See, e.g., Morales-de 
    Jesus, 372 F.3d at 21
    –
    22; 
    Sirois, 87 F.3d at 42
    .
    All that the record shows is that Palomino-Coronado had
    engaged in sexual activity with B.H. on more than one occasion;
    that he had taken several non-sexually explicit pictures of her
    with    his    cell    phone         in   his   basement;     and    that    one    sexually
    11
    explicit picture was taken, in which B.H. identified herself and
    Palomino-Coronado as the two people depicted.                          Without more,
    these facts do not support the conclusion that Palomino-Coronado
    engaged in sexual activity with B.H. in order to take a picture.
    To   hold      otherwise         would     eliminate       the    specific     intent
    requirement, turning § 2251(a) into a strict liability offense.
    We find it significant here that only one photograph was
    taken and subsequently deleted. 4                   The government argues that
    there is no requirement that a defendant take a certain quantity
    of   images     or   engage      in   a   certain    amount      of   preparation   to
    determine whether he has acted for the purpose of producing a
    visual depiction.         We agree as a general matter.               Although, when
    pressed at oral argument, the government could not provide any
    authority upholding a conviction challenging the specific intent
    element where only one photograph was taken.
    In this instance, where Palomino-Coronado engaged in sexual
    activity with B.H. over many months, the fact that only one
    image was produced militates against finding that his intent in
    doing     so   was   to   take    a   picture.       The    single     photo   is   not
    evidence that Palomino-Coronado engaged in sexual activity with
    B.H. to take a picture, only that he engaged in sexual activity
    4We note that the record did not indicate at what point the
    photograph was deleted, whether it was immediately after it was
    taken or sometime later.
    12
    with B.H. and took a picture.                   Cf. 
    Crandon, 173 F.3d at 130
    (acknowledging      that     “[s]et    in       context,”     the     fact    that   the
    defendant had taken close to fifty pictures of the minor, only
    two   of    which    were    sexual     in      nature,      “could      support     [the
    defendant’s] contention that his purpose in taking the photos
    was the memorialization of their time together or his love for
    her—a purpose other than producing sexually explicit material”).
    To be sure, a situation might well present itself where only one
    photograph    was    taken    but     where     there   was    other      evidence    of
    purpose, and we do not hold that a sufficiency challenge would
    necessarily fail in that instance.               But that is not this case.
    The government contends that Palomino-Coronado’s frequent
    use of the camera on his cell phone showed that he “regularly
    and intentionally used his phone to take pictures of all aspects
    of his life.”        The government also asserts that the fact that
    the photo at issue focused on Palomino-Coronado’s genital area
    as he engaged in sexual activity with B.H. demonstrates that the
    photo was not unintentionally or inadvertently captured.
    But    the    government      does      little    to    explain        how   these
    conclusory statements indicate that Palomino-Coronado initiated
    the sexual activity with B.H. for the purpose of producing the
    picture.      Instead,       the    government       appears        to   conflate    the
    voluntary act of taking the picture with the specific intent
    required under the statute.
    13
    The fact that Palomino-Coronado brought his cell phone with
    him   to     the   basement     does       not    support       a    finding    of   purpose.
    Palomino-Coronado’s use of his cell phone to take pictures is a
    far cry from the tripod and other recording equipment used to
    support purpose in other cases.                        See, e.g., 
    Lebowitz, 676 F.3d at 1013
    ;    Morales-de      
    Jesus, 372 F.3d at 22
    .    Whereas     those
    devices       demonstrate      some    sort           of    forethought,       planning,    or
    intent, the mere presence of a cell phone is not evidence of
    purpose.           Cell    phones     are        now       ubiquitous,     especially      for
    teenagers, and almost always within reach.                            We do not conclude
    that use of a cell phone will never be evidence of purpose under
    § 2251(a); instead, we simply hold that Palomino-Coronado’s use
    of his cell phone in this instance does not meet the specific
    intent requirement under the statute.
    IV.
    For    these       reasons,    we    hold       that    the    government     adduced
    insufficient evidence to show that Palomino-Coronado acted for
    the purpose of producing a visual depiction.                           The district court
    thus erred in denying Palomino-Coronado’s motion for judgment of
    acquittal.         Therefore, we reverse the district court’s ruling
    and vacate Palomino-Coronado’s conviction.
    REVERSED AND VACATED
    14