United States v. Reigle , 228 F. App'x 353 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4246
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES A. REIGLE, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(1:05-cr-00262-MJG)
Submitted: May 14, 2007 Decided: May 30, 2007
Before WILLIAMS, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph Murtha, MILLER, MURTHA & PSORAS, LLC., Lutherville,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Tonya Kelly Kowitz, Andrew G. W. Norman, Assistant United
States Attorneys, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On August 18, 2005, James Reigle, Jr. was charged in a
six count superseding indictment with conspiracy to transport, ship
and possess visual depictions of minors engaged in sexually
explicit conduct, in violation of 18 U.S.C.A. § 2252(a)(1) and
(b)(1) (West 2000 and Supp. 2006) (Count One); transporting visual
depictions of minors engaged in sexually explicit conduct, in
violation of 18 U.S.C.A. § 2252(a)(1) (Counts Two and Three);
sexually exploiting minors for the purpose of producing visual
depictions thereof, in violation of 18 U.S.C.A. § 2251(a)(1) and
(b)(1) (West 2000 and Supp. 2006) (Counts Four and Five); and
possession of visual depictions of minors engaged in sexually
explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B) (Count
Six). Counts Two through Six also alleged aiding and abetting the
charged offenses, in violation of 18 U.S.C. § 2 (2000).
Reigle’s jury trial began on November 28, 2005. At
trial, Thomas Evered testified that he met Reigle on the internet
in 1997. Evered eventually traveled to Pennsylvania with his
desktop computer to trade child pornography collections with
Reigle. Reigle had photographs of SH, SH’s younger, nine-year-old
brother AH, and another boy, SB, in his collection.* Evered also
testified that during this trip Reigle had sent a video depicting
*
All boys in this opinion are referred to by their initials as
they were at trial.
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the three boys engaged in sexually explicit conduct to a friend who
had copied it and made digital clips that could be traded on the
internet. In 1998, Evered became an over-the-road truck driver.
Evered testified that he always kept his child pornography
collection in his truck with him, and that his collection included
images he got from Reigle. Reigle was aware of these facts.
On November 23, 1999, Reigle was arrested on charges of
child molestation. On September 23, 2002, Reigle reported to the
Federal Correctional Institution in Cumberland, Maryland
(hereinafter “FCI Cumberland”). At some point, Reigle called
Evered from FCI Cumberland and asked him to copy his child
pornography collection onto CDs and keep constant possession of the
CDs so that he would have no trouble getting his collection back
upon his release. Evered testified that he retrieved Reigle’s hard
drive and approximately thirty-five CDs and maintained them at all
times on his truck. Evered further testified that he traveled into
Maryland on November 18, 2002, and March 4, 2003, while driving his
tractor-trailer rig. On each occasion, Evered had his laptop with
all of the pornographic images of AH, SH, and another boy, D, as
well as the videos of AH, SH, and SB.
At trial AH and SH also testified. They testified as to
how they met Reigle. AH testified that Reigle taped him engaged in
sexual activity with SB and SH, identified the videos presented by
the Government, and testified that Reigle made the videos. AH also
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identified himself in photographs that have come to be known as the
“Anthony Collection.” SH testified that Reigle photographed him
and directed him to photograph Reigle and AH engaged in sexual
acts. SH also identified various Government exhibits including a
photograph and two videos.
The Government also introduced the testimony of SB, JB,
and TB, who were molested by Reigle. SB identified Reigle as the
adult male in two photographs depicting an adult male with a
partially obscured face performing fellatio on a minor. JB
testified as to how Reigle molested him. JB also identified Reigle
in the same photos shown to SB. Finally, TB testified as to how he
met Reigle and how Reigle molested him.
At trial the Government introduced evidence that
photographs from the “Anthony Collection” were found on a computer
in Edgewater, Maryland. Also, Special Agent Kathleen Kornek
downloaded from a computer in Texas pictures from the “Anthony
Collection” and two video clips to a computer in Calverton,
Maryland.
Reigle was ultimately convicted on all six counts. At
sentencing, the district court dismissed Count Six based on
Reigle’s motion for acquittal due to lack of venue. The court then
sentenced Reigle to life imprisonment on Counts Four and Five and
forty years on Counts One, Two, and Three. All sentence were to
run concurrently. Reigle timely appealed, alleging that the
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district court erred in not granting his motion for acquittal based
on improper venue for each count in the indictment and that the
court erred in admitting the testimony of SB, JB, and TB.
The prosecution bears the burden of proving venue by a
preponderance of the evidence, and where, as here, a defendant is
charged with multiple crimes, venue must be proper on each count.
United States v. Ebersole, 411 F.3d 517, 524 (4th Cir. 2005). In
determining whether the government has established venue by a
preponderance of the evidence, the evidence must be viewed in the
light most favorable to the government. United States v. Burns,
990 F.2d 1426, 1437 (4th Cir. 1993)
Count One of the indictment alleged that Reigle conspired
with Evered to transport and ship in interstate commerce visual
depictions of minors engaged in sexually explicit conduct and to
possess such depictions. Venue was proper in Maryland for Count
One as three overt acts in furtherance of the conspiracy occurred
in Maryland. Pinkerton v. United States, 328 U.S. 640, 646-47;
United States v. Snead, 527 F.2d 590 (4th Cir. 1975). Reigle
entered the conspiracy while in Maryland by calling Evered from FCI
Cumberland, and Evered twice transported Reigle’s collection into
Maryland.
Venue in Maryland was also proper for Counts Two and
Three as Reigle conspired with Evered and aided his transportation
of the child pornography. United States v. Kibler, 667 F.2d 452,
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455 (4th Cir. 1982). On two dates, Evered possessed child
pornography at Reigle’s request. Reigle thereby aided Evered’s
interstate transportation of child pornography.
Finally, venue for Counts Four and Five was proper in
Maryland. Reigle created the visual depictions of his victims in
his home in Pennsylvania. Several of these depictions were
discovered on a computer at a home in Edgewater, Maryland on May 5,
2004. The Government established that these images were downloaded
from the internet onto the computer. Thus, venue for Count Four
was proper. Also, Special Agent Kathleen Kornek downloaded child
pornography created in Pennsylvania by Reigle from a computer in
Texas. Kornek’s downloading in Maryland made venue in Maryland for
Count Five appropriate.
Additionally, the district court properly admitted
evidence of Reigle’s molestation of other children. Rule 404(b)
decisions by the district court are discretionary and will not be
overturned unless arbitrary and irrational. United States v.
Powers, 59 F.3d 1460, 1464 (4th Cir. 1995). We find that the
testimony of SB, JB, and TB at issue was admissible both as
intrinsic evidence and as evidence of Reigle’s identity and motive.
Count Five charged Reigle with production of child
pornography. SB testified that he appeared in the video that
formed the basis for Count Five and that he engaged in genital to
anal sex with another minor in the video at Reigle’s direction.
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Reigle’s molestation of SB was therefore inextricably intertwined
with the creation of the video that was subsequently downloaded by
the FBI. United States v. Chin, 83 F.3d 83, 87-88 (4th Cir. 1996).
Also, the testimony of SB, JB, and TB was properly
admitted to establish Reigle’s identity. SB, JB, and TB’s
testimony corroborated AH and SH’s testimony and established Reigle
as the person who created the child pornography. Finally, the
probative value of the testimony of SB, JB, and TB was not
substantially outweighed by unfair prejudice to Reigle. See United
States v. Boyd, 53 F.3d 631, 637 (4th Cir. 1995).
As the district court did not err in admitting the
testimony of SB, JB, and TB or in denying Reigle’s motion for
judgment of acquittal, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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