United States v. Richard Blank, Jr. ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4769
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RICHARD ALAN BLANK, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:14-cr-00448-WDQ-1)
Submitted: August 19, 2016 Decided: August 30, 2016
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Joanna Silver, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Judson T. Mihok,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Alan Blank, Jr., was convicted of two counts of
producing child pornography, 18 U.S.C. § 2251(a) (2012) (Counts
One and Two), and one count of possession of child pornography,
18 U.S.C. § 2252A(a)(5)(B) (2012) (Count Three). He was
sentenced to 360 months in prison. Blank now appeals his
convictions on Counts One and Two, claiming that there was
insufficient evidence to convict him. We affirm.
We will sustain a jury’s verdict “if there is substantial
evidence, taking the view most favorable to the Government, to
support it.” Glasser v. United States, 315 U.S. 60, 80 (1942);
United States v. Bran, 776 F.3d 276, 279 (4th Cir. 2015), cert.
denied, 136 S. Ct. 722 (2016). “Substantial evidence is that
evidence which 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. Al Sabahi,
719 F.3d 305, 311 (4th Cir. 2012) (internal quotation marks
omitted). In conducting this analysis, “circumstantial evidence
is treated no differently than direct evidence, and may be
sufficient to support a guilty verdict even though it does not
exclude every reasonable hypothesis consistent with innocence.”
United States v. Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989).
We do not review the credibility of the witnesses, and we assume
that the jury resolved all contradictions in testimony in favor
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of the Government. United States v. Romer, 148 F.3d 359, 364
(4th Cir. 1998). Reversal of a conviction on grounds of
insufficient evidence “is confined to cases where the
prosecution’s failure is clear.” Burks v. United States, 437
U.S. 1, 17 (1978).
The relevant statute provides:
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).
The statute “contains a specific intent element: the
government [is] required to prove that production of a visual
depiction was a purpose of engaging in the sexually explicit
conduct.” United States v. Palomino-Coronado, 805 F.3d 127, 130
(4th Cir. 2015). In Palomino-Coronado, we stated:
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).
Id. at 131.
Among the factors indicative of the requisite purpose are:
the defendant’s concealing from the victim the fact that he was
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photographing or videotaping her; the defendant’s giving
instructions concerning positions he wanted the victim to assume
and things he wanted her to say while he recorded or
photographed their activities; whether there were a number of
sexually explicit recordings or photographs; and whether there
was “purposeful conduct” surrounding the photographic or video
equipment used. Id. at 131-32.
We reject Blank’s claim that there was insufficient
evidence of the requisite intent and conclude that “a purpose”
of Blank’s sexual activity with the minor was to produce child
pornography. Over a 12-13 minute period during an hour-long
sexual encounter, Blank instructed the victim how he wanted her
to pose for photographs. He took four photos of her buttocks
and anus during this time. Blank showed the photos to the
victim immediately after taking them and again late that
afternoon, referring to her as “little miss porn star.” Over
the next 24-48 hours, both the victim and her mother saw Blank
surreptitiously looking at his phone during this time,
suggesting that he was viewing the photographs. He deleted the
images before he handed the phone to his wife.
Further, Blank’s activity leading up to this encounter
suggests that a purpose of the encounter was to produce child
pornography. Two days before he took the photographs, Blank
asked the victim several times to allow him to take photographs
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of them while they engaged in anal intercourse. The victim
refused each time.
We hold that the evidence was sufficient to convict Blank,
and we affirm. We dispense with oral argument because the facts
and legal arguments are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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