United States v. Forrest ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 04-4665
RONALD C. FORREST,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-03-458-AW)
Argued: September 19, 2005
Decided: November 14, 2005
Before WILKINSON and MOTZ, Circuit Judges, and
R. Bryan HARWELL, United States District Judge
for the District of South Carolina, sitting by designation.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Wilkinson and Judge Harwell joined.
COUNSEL
ARGUED: Gary Eugene Bair, BENNETT & BAIR, L.L.P., Green-
belt, Maryland, for Appellant. Gina Laurie Simms, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee. ON BRIEF: Allen F. Loucks,
United States Attorney, Greenbelt, Maryland, for Appellee.
2 UNITED STATES v. FORREST
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Ronald Forrest challenges his conviction for the sexual exploitation
of a child in violation of 18 U.S.C.A. §§ 2251(a) and 2252A(a)(5)(b)
(West 2000). He contends that Congress’s Commerce Clause author-
ity does not extend to his private, intrastate production and possession
of child pornography, and that the district court erred in admitting cer-
tain photographs and expert testimony. Forrest also maintains that his
sentence should be vacated and remanded because the district court
mistakenly believed the then-mandatory Sentencing Guidelines
required imposition of a prison term. We reject each of these argu-
ments, and affirm the judgment of the district court.
I.
Forrest was the Chief of Police of the Seat Pleasant, Maryland
Police Department. He met the victim, Steven, through the depart-
ment’s Junior Police Program. Steven helped found the program
because he hoped to become a police officer and wanted to learn more
about police work. Initially, the two interacted only when Forrest
oversaw the program’s activities on weekends. Eventually, however,
Steven asked if he could come over to Forrest’s house. Forrest agreed.
Steven would go to Forrest’s house either to do chores (such as mow-
ing the lawn) or to "go[ ] out somewhere" with him. Beginning in Jan-
uary 2001, around the time Steven turned thirteen, he started spending
the night at Forrest’s house. When Forrest’s daughter was away, Ste-
ven would sleep in her room, but when she was home he would stay
with Forrest in his room. Through these visits, Steven, who had never
lived with his own father, came to view Forrest as a father figure.
Steven asked Forrest to take pictures of him to give to his girl-
friend. Forrest took digital pictures of Steven, who was clothed at the
time, while an X-rated movie played in the background. That same
day, Forrest asked if he could take semi-nude photographs of Steven.
Originally, Steven refused but agreed after Forrest asked repeatedly
and offered to pay Steven between $50 and $80. Forrest then asked
to take fully nude photographs of Steven. Steven again refused, but
agreed after Forrest offered to pay him more money.
UNITED STATES v. FORREST 3
On a separate occasion, Forrest used a Polaroid camera to take pic-
tures of Steven lying on Forrest’s bed. In some of the polaroids Ste-
ven was clothed, but in others he was unclothed. Forrest again offered
Steven between $50 and $80 to pose for these pictures. Steven also
testified that Forrest twice attempted to assault him sexually, once in
Forrest’s bedroom and once in his office.
In 2003, Forrest’s fiancee suspected him of infidelity. While
searching his house for evidence, she discovered a photo album in his
home office. The album included pictures of Steven and another
young man she recognized, as well as nude photographs of the fiancee
herself. It also contained pictures of adult males; those images bore
the logo of a website called "Rude Jam." She left the album at For-
rest’s house, but returned a few days later to retrieve the album and
turn it over to the FBI. Before turning it over, she removed the nude
pictures of herself from the album because they embarrassed her.
FBI officers subsequently searched the hard drives of Forrest’s
home and office computers. They determined that both hard drives
contained the same adult male photographs bearing the "Rude Jam"
logo that were found in the photo album.
At trial, the Government presented evidence that an Olympus digi-
tal camera found in Forrest’s home had been manufactured in Asia.
The Government also introduced evidence that the Polaroid camera
had been manufactured in Massachusetts. Additionally, the Govern-
ment offered the testimony of expert witness Kenneth Lanning, who
described the relationships between child molesters and their victims
and the victims’ typical responses to such incidents.
Two defense witnesses testified. Steven’s former girlfriend testified
that Steven denied that Forrest had ever touched him. A second wit-
ness offered her opinion that Steven was a liar.
The jury convicted Forrest of two counts of sexually exploiting a
minor for the purpose of producing child pornography in violation of
18 U.S.C. § 2251(a) and two counts of possessing child pornography
in violation of 18 U.S.C. § 2252A(a)(5)(B). At sentencing, defense
counsel argued that Blakely v. Washington, 124 S. Ct. 2531 (2004),
applied to the federal guidelines and objected to enhancement of the
4 UNITED STATES v. FORREST
offense level from 27 to 31 on the basis of facts not found by the jury.
Overruling that objection, the district court determined that Forrest’s
offense level and criminal history category called for a sentence in the
108-135 month guideline range. The court then sentenced Forrest to
120 months, the minimum term of imprisonment that a court can
impose under § 2251.
II.
Forrest initially presents an as-applied Commerce Clause challenge
to 18 U.S.C. §§ 2251(a) and 2252A(a)(5)(B). He asserts that applying
these statutes to him exceeds Congress’s Commerce Clause authority
because his private intrastate production and possession of child por-
nography did not substantially affect interstate commerce.1
Forrest did not raise this argument in the district court. To be sure,
he did argue that the Government had not proven that the materials
used to produce the child pornography traveled in interstate com-
merce. This is not a constitutional attack; it is merely an allegation
that the Government did not meet its burden of proving each element
of the offenses beyond a reasonable doubt. Because Forrest did not
lodge a constitutional challenge in the district court, we review this
claim only for plain error. United States v. Hughes, 401 F.3d 540, 547
(4th Cir. 2005).
Under plain error analysis, an appellant must show that an error
1
Forrest’s assertion derives from his belief that the statutes’ jurisdic-
tional limitations — requiring that the pictures be "produced using mate-
rials that have been mailed, shipped, or transported in interstate or
foreign commerce by any means, including by computer," 18 U.S.C.A.
§ 2251(a) (West 2000); see also id. § 2252A(a)(5)(B) (using substan-
tially identical language) — do not ensure that his activities affect inter-
state commerce. Although a jurisdictional element may establish that a
given statute "is in pursuance of Congress’ regulation of interstate com-
merce," United States v. Morrison, 529 U.S. 598, 612 (2000), an effec-
tive jurisdictional element is certainly not required where, as here, the
statute directly regulates economic activity. See, e.g., Gonzales v. Raich,
125 S. Ct. 2195 (2005) (upholding Controlled Substances Act under
Commerce Clause without discussion of statute’s jurisdictional element).
UNITED STATES v. FORREST 5
occurred, that the error was plain, and that the error affected his sub-
stantial rights. United States v. Olano, 507 U.S. 725, 732 (1993).
Even if an appellant makes this three-part showing, we should not
exercise our discretion to notice an error unless it "seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings." Id.(quoting United States v. Young, 470 U.S. 1, 15 (1985) (internal quo-
tation marks omitted)).
Forrest cannot overcome even the initial hurdle of showing error.
The Supreme Court’s recent decision in Gonzales v. Raich, ___ U.S.
___, 125 S. Ct. 2195 (2005), makes clear that no error resulted from
applying §§ 2251(a) and 2252A(a)(5)(B) to Forrest’s wholly intrastate
production and possession of child pornography. Raich rejected a
similar as-applied Commerce Clause challenge to the Controlled Sub-
stances Act ("CSA") by intrastate growers and users of medical mari-
juana.
In Raich the Court reaffirmed the long-standing principle that the
Commerce Clause empowers Congress to regulate purely local intra-
state activities, so long as they are part of an "economic class of activ-
ities that have a substantial effect on interstate commerce." Raich, 125
S. Ct. at 2205 (internal quotation marks omitted) (citing Perez v.
United States, 402 U.S. 146, 151 (1971), and Wickard v. Filburn, 317
U.S. 111, 128-29 (1942)). Moreover, the Court emphasized, Congress
needs only a rational basis for concluding that such local activities
substantially affect interstate commerce. Id. at 2208. Because the
Raich Court found that the CSA regulated an economic class of activ-
ities and that Congress had a rational basis for concluding that local
drug possession substantially affected interstate commerce, it held
that the Raich defendants could not escape the sweep of the statutory
prohibition simply because their individual activities assertedly had a
de minimis effect on interstate commerce. Id. at 2206.
The case at hand is strikingly similar to Raich. In both, Congress
exercised its Commerce Clause authority to regulate "quintessentially
economic" activities, i.e., those involving the "production, distribu-
tion, and consumption of commodities." Id. at 2211. True, the regu-
lated commodities differ; in Raich, the commodity was marijuana,
here it is child pornography. But that distinction is immaterial. In both
statutes Congress "directly" regulated economic activity in a "fungible
6 UNITED STATES v. FORREST
commodity," id. at 2206, by, inter alia, prohibiting its possession. See
also United States v. Buculei, 262 F.3d 322, 329 (4th Cir. 2001)
(holding that possession and production of child pornography "is eco-
nomic in nature").
Moreover, in both instances Congress had a rational basis for con-
cluding that prohibition of mere local possession of the commodity
was essential to the regulation of "an established, albeit illegal, inter-
state market." Raich, 125 S. Ct. at 2206. Just as Congress rationally
concluded that demand might draw homegrown marijuana into inter-
state markets, thereby "frustrat[ing] the federal interest in eliminating
commercial transactions in the interstate market in their entirety," id.
at 2207, so too might Congress rationally fear that homemade child
pornography would find its way into interstate commerce. Cf. id. at
2212 ("The congressional judgment that an exemption for such a sig-
nificant segment of the total market would undermine the orderly
enforcement of the entire regulatory scheme is entitled to a strong
presumption of validity."). Indeed, this concern is especially salient
in the context of child pornography, because much of the material
traded on that interstate market is homemade. See Buculei, 262 F.3d
at 329 (citing findings of the 1986 Attorney General’s Commission
on Pornography); H.R. Rep. No. 98-536, at 17, reprinted in 1984
U.S.C.C.A.N. 492, 508 ("Generally, the domestic material is of the
‘homemade’ variety, while the imported material is produced by com-
mercial dealers.").
Furthermore, although Congress need not make findings as to the
effect of local activities on the interstate market before it regulates,
Raich, 125 S. Ct. at 2208, it did so in enacting both the CSA and the
statutes at issue here. Compare id. at 2203 n.20 (quoting findings that
local drug possession affects interstate commerce), with Child Por-
nography Prevention Act of 1996, Pub. L. 104-208, 110 Stat. 3009-27
("[P]rohibiting the possession and viewing of child pornography will
. . . help[ ] to protect the victims of child pornography and to elimi-
nate the market for the sexual exploitative use of children.") (empha-
sis added); see also Buculei, 262 F.3d at 329 ("[T]here are ample
congressional findings to support the proposition that production and
possession of child pornography substantially affect interstate com-
merce.").
UNITED STATES v. FORREST 7
In light of these similarities, we can only hold that Raich controls
the present analysis.2 As in Raich, the general regulatory scheme here
governs "quintessentially economic" activities. Raich, 125 S. Ct. at
2211. Because Congress possessed a rational basis for concluding that
the local production and possession of child pornography substan-
tially affect interstate commerce, "the de minimis character of individ-
ual instances arising under the statute is of no consequence." Id. at
2206 (quoting United States v. Lopez, 514 U.S. 549, 558 (1995)).
Accordingly, Forrest’s constitutional challenge, which rests entirely
on the asserted de minimis economic effect of his own activities, see,
e.g., Brief of Appellant at 8 ("Nothing about these child photographs
implicated or affected interstate commerce."), must fail.
III.
Forrest also appeals two evidentiary rulings. First, he claims the
district court erred by admitting purportedly irrelevant and prejudicial
photographs and computer images of adult males. Second, he argues
the court erred by admitting unreliable and prejudicial expert testi-
mony about the behavior patterns of child sexual predators. We
review decisions to admit evidence for abuse of discretion. Anderson
v. Westinghouse Savannah River Co., 406 F.3d 248, 260 (4th Cir.
2005); United States v. Ham, 998 F.2d 1247, 1252 (4th Cir. 1993).
A.
Forrest asserts that the district court erred in admitting several por-
nographic and nonpornographic photographs of adult males found in
2
We note that the Supreme Court itself has suggested that Raich bears
directly on the question at hand by vacating and remanding in light of
Raich two cases sustaining Commerce Clause challenges to these child
exploitation statutes. See United States v. Smith, 402 F.3d 1303 (11th Cir.
2005), vacated and remanded, 125 S. Ct. 2938 (2005); United States v.
Maxwell, 386 F.3d 1042 (11th Cir. 2004), vacated and remanded, 74
U.S.L.W. 3171 (Oct 4, 2005) (No. 04-1382). The Solicitor General has
also asked the Court to vacate and remand another Eleventh Circuit case
in light of Raich. See United States v. Matthews, petition for cert. filed,
2005 WL 1609688 (July 8, 2005) (No. 05-59). That petition is still pend-
ing.
8 UNITED STATES v. FORREST
his photo album and on his home and office computers. He contends
that because these photographs have "the effect of portraying Mr. For-
rest as a homosexual, with the prejudice and possible connotation of
a child molester as well," Brief of Appellant at 24, the district court
should have excluded them under Federal Rule of Evidence 403.
That rule provides that a district court may exclude otherwise rele-
vant evidence if its probative value is "substantially outweighed by
the danger of unfair prejudice." Fed. R. Evid. 403. A court does not
abuse its discretion by refusing to exclude such evidence, however,
unless there is "a genuine risk that the emotions of the jury will be
excited to irrational behavior, and that this risk is disproportionate to
the probative value of the offered evidence." Ham, 998 F.2d at 1252(quoting United States v. Masters, 622 F.2d 83, 87 (4th Cir. 1980)
(internal quotation marks omitted)).
The district court did not abuse its discretion here. Even if we
accept Forrest’s premise that allegations of homosexuality were preju-
dicial, that prejudice was not disproportionate to the pictures’ rele-
vance. Forrest’s defense theories made the images of adult males
highly relevant. His attorney repeatedly argued that Forrest’s ex-
fiancee had "manufactured" the photo album. Alternatively, his coun-
sel suggested several times that Forrest took the photographs of the
victim in order to help him prepare a civil law suit against a jail stem-
ming from an illegal strip-search during a field trip.
The images of adult males directly rebutted both theories. The
images suggested that Forrest himself manufactured the album,
because the same images of adult males in the album, bearing the
"Rude Jam" website logo, existed on Forrest’s home and office com-
puters as well. The images’ placement in the album also contradicted
the notion that they were taken for innocent, investigatory purposes
because Forrest inserted them in the album next to pictures showing
the same region of the victim’s anatomy.
Because these adult male images indicated that Forrest had created
the album and that he did not possess entirely innocent purposes for
so doing, they constituted important relevant evidence. See Fed. R.
Evid. 401 ("‘Relevant evidence’ means having any tendency to make
the existence of any fact that is of consequence . . . more probable or
UNITED STATES v. FORREST 9
less probable than it would be without the evidence."). Forrest has not
established that the images’ purported prejudicial effect was so severe
that it substantially outweighed this relevance.3
B.
Forrest next asserts that the district court erred in admitting the
expert testimony of Kenneth Lanning, who testified about the behav-
ioral patterns of child sexual abusers.
A federal district court performs an important "gatekeeping" func-
tion in deciding whether to admit expert testimony under Federal Rule
of Evidence 702. The court "must ensure that any and all scientific
testimony or evidence admitted is not only relevant, but reliable."
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589
(1993). In assessing whether the expert testimony is reliable and rele-
vant, a court should consider "(1) whether the particular scientific the-
ory ‘can be (and has been) tested’; (2) whether the theory ‘has been
subjected to peer review and publication’; (3) the ‘known or potential
rate of error’; (4) the ‘existence and maintenance of standards control-
ling the technique’s operation’; and (5) whether the technique has
achieved ‘general acceptance’ in the relevant scientific or expert com-
munity." United States v. Crisp, 324 F.3d 261, 266 (4th Cir. 2003)
(quoting Daubert). The same analysis applies where the expert testi-
mony relates to matters of technical, rather than scientific, expertise.
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999).
Forrest contends that the district court violated Rule 702 in admit-
ting this expert testimony because it was neither reliable nor relevant.
He also asserts the court violated Rule 403 because the testimony,
which "portray[ed] [Forrest] as a child molester and Steven as his vic-
3
The primary Fourth Circuit precedent on which Forrest relies —
United States v. Ham — merely held that the defendant in a racketeering
and mail fraud prosecution was unfairly prejudiced by "implications of
child molestation, homosexuality, and abuse of women." Ham, 998 F.2d
at 1252. The present case is very different; the images in question here
are less prejudicial and substantially more relevant to the underlying
charges than the materials at issue in Ham. Accordingly, Ham provides
no support for Forrest.
10 UNITED STATES v. FORREST
tim," Brief of Appellant at 33, posed a risk of unfair prejudice that
substantially outweighed its probative value.
The admission of this testimony is troubling. Even though Forrest
was not on trial for sexual abuse, the court permitted Lanning to
describe a general profile of a serial child molester that closely resem-
bled Forrest’s behavior. Lanning testified that child molesters are
often authority figures, like police officers; that they often take pic-
tures of the children they assault; that they have their child victims
spend the night; that they use pornography to lower their victims’
inhibitions; and that they are often discovered only after someone
finds the pictures they have taken. Each of these hypothetical charac-
teristics is present in this case and suggests that Forrest, too, might be
a child molester.
We need not resolve whether admission of this expert testimony
violated either Rule 403 or Rule 702, however. Even assuming its
admission was error, that error was harmless. See United States v.
Jones, 913 F.2d 174, 177 (4th Cir. 1990) (applying harmless error
analysis to improper admission of expert testimony).
An error in admitting improper expert testimony is harmless if
"viewing the record as a whole, it is ‘clear beyond a reasonable doubt
that the jury would have returned a verdict of guilty’ absent the testi-
mony." Jones, 913 U.S. at 177 (quoting Alston v. Garrison, 720 F.2d
812, 817 (4th Cir. 1983)). Clearly, on this record the jury would have
found Forrest guilty even absent Lanning’s testimony. It cannot be
said that the mere suggestion Forrest might be a child molester
affected the verdict given the direct evidence establishing that he had
twice attempted to assault Steven. Moreover, the Government offered
overwhelming evidence that Forrest committed the crimes for which
the jury convicted him — production and possession of child pornog-
raphy in violation of §§ 2251(a) and 2252A(a)(5)(B). See Jones, 913
F.2d at 177 ("In considering the harmlessness of the error, it is proper
to consider other evidence of the defendant’s guilt.") (quoting United
States v. Davis, 657 F.2d 637, 640 (4th Cir. 1981) (internal quotation
marks omitted). For these reasons, any error in admitting the expert
testimony was harmless.
UNITED STATES v. FORREST 11
IV.
Finally, Forrest asserts that the district court erred in sentencing
him. He bases his claim on United States v. Booker, 125 S. Ct. 738(2005), in which the Supreme Court held that "the imposition of a
sentence under the former mandatory guidelines regime" is error.
United States v. White, 405 F.3d 208, 216 (4th Cir. 2005). Forrest’s
claim is not a pure Booker claim, however; instead, it derives from
the interaction of Booker and this court’s holding in United States v.
Rast, 293 F.3d 735 (4th Cir. 2002).
In Rast, we interpreted some anomalous language in § 2251, which
then provided that a defendant convicted under that provision shall
"be fined under this title or imprisoned not less than 10 years nor
more than 20 years, and both." 18 U.S.C. § 2251 (2000) (emphasis
added).4 We held that the language "must be the result of a drafting
error," and should be read as "or both," instead of "and both." Rast,
293 F.3d at 737.
Forrest relies on a portion of the Rast opinion that suggests we
would have remanded the case to the district court so that it could
exercise discretion in deciding whether to impose a fine or a ten-year
sentence, but for the fact that the Guidelines required some prison
time. See Rast, 293 F.3d at 739. Finding that the then-mandatory
Guidelines "foreclose[d] the option of imposing solely a fine," id. at
740, we affirmed the sentence. Forrest asserts this holding must be
revisited in light of Booker. “Thus, Forrest challenges his sentence on
the basis of a Booker claim once removed. He does not assert that the
district court inappropriately applied a mandatory sentencing regime,
but rather that it sentenced him to the statutorily prescribed ten-year
term against the backdrop of Rast, which allegedly was infected with
Booker error.
Because Forrest failed to raise this issue in the district court, we
consider it only for plain error. Hughes, 401 F.3d at 547. As noted
4
Congress amended this statute in 2003 in the PROTECT Act, Pub. L.
108-21 § 103(b)(1)(A). It now provides that a defendant convicted under
section 2251 should receive both a fine and a mandatory minimum jail
term. See 18 U.S.C.A. § 2251(e) (West Supp. 2005).
12 UNITED STATES v. FORREST
above, to succeed on the plain error analysis Forrest must demonstrate
that an error occurred, that it was plain, that the error affected his sub-
stantial rights, and that failure to recognize it would be a miscarriage
of justice. Id. at 547-48, 555.
Even if Forrest is correct that, as in Rast, the district court in this
case felt compelled to give him a prison term because of the manda-
tory nature of the Guidelines, this does not, in itself, warrant reversal.
Although it would be plain error to sentence Forrest to a prison term
(as opposed to imposing a fine) solely because of the mandatory
Guidelines regime, a court will not grant relief because of such error
unless an appellant demonstrates that such an error affected his sub-
stantial rights. See White, 405 F.3d at 216-17. Forrest has not done
that.
To make the required showing — that this alleged error affected
his substantial rights — Forrest must do more than hypothesize that
he might have received a different sentence if the judge knew the
Guidelines were merely advisory; he must "demonstrate, based on the
record, that the treatment of the Guidelines as mandatory caused the
district court to impose a longer sentence than it otherwise would
have imposed." Id. at 224. As we held in Rast, if the trial court
imposes any imprisonment at all under § 2251, it must give a defen-
dant at least ten years, 293 F.3d at 738; this was Forrest’s actual sen-
tence. Hence, Forrest would need to show that the district court would
have imposed a fine on him in lieu of jail time had he been sentenced
after Booker rendered the Guidelines advisory.
The record provides no nonspeculative basis for such a conclusion.
If anything, it only confirms that the court would have sentenced For-
rest to the ten-year statutory minimum jail term regardless of Booker.
The district court noted that this was "a very, very serious offense"
with many victims, including Steven, Forrest’s family, and the City
of Seat Pleasant. Moreover, although the court calculated the guide-
line range, nowhere did it state that it was the Guidelines, rather than
the statutory term (which the court repeatedly mentioned), that man-
dated the ten-year sentence. Because Forrest bears the burden of proof
on plain error review, his claim must fail.
UNITED STATES v. FORREST 13
V.
For all these reasons, the judgment of the district court is
AFFIRMED.