United States v. Philip Sebolt , 554 F. App'x 200 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4093
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILIP MICHAEL SEBOLT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:12-cr-00033-JAG-1)
Argued: December 11, 2013 Decided: February 11, 2014
Before GREGORY, DAVIS, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
opinion. Judge Gregory wrote the opinion, in which Judge Davis
and Judge Wynn joined.
ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Thomas Kennerly
Johnstone IV, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee. ON BRIEF: Michael S.
Nachmanoff, Federal Public Defender, Alexandria, Virginia,
Valencia D. Roberts, Assistant Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney,
Alexandria, Virginia, Elizabeth C. Wu, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
GREGORY, Circuit Judge:
The defendant, Philip Michael Sebolt, was charged in a one-
count indictment with advertising child pornography, in
violation of 18 U.S.C. § 251(d). At trial, the government
sought to introduce five exhibits under Federal Rule of Evidence
404(b). Over the defendant’s objections, the district court
admitted the materials, ruling that they helped establish the
defendant’s identity. After a bench trial, the district court
found the defendant guilty. At sentencing, the court increased
his criminal history category from IV to V, finding him to be a
“repeat and dangerous sex offender” pursuant to United States
Sentencing Guidelines § 4B1.5., and sentenced him to life in
prison. On appeal, the defendant argues that the court erred in
(1) admitting the identity evidence, and (2) calculating his
Sentencing Guidelines range. For the following reasons, we
affirm in part, vacate in part, and remand for resentencing.
I.
In March of 2012, Sebolt was charged with, between January
1, 2010 and February 19, 2010, creating a “notice or
advertisement” seeking to purchase child pornography, in
3
violation of 18 U.S.C. § 2251(d). 1 At the time of the charged
conduct, Sebolt was an inmate at F.C.I. Petersburg serving a
sentence for child pornography offenses.
The document at the heart of the prosecution 2 is a
handwritten flyer seeking, in graphic terms, pictures of nude,
prepubescent children posing in various positions. The flyer
offers various sums of money for the pictures depending on the
pose or sexual act depicted. The reverse side of the flyer
includes photographs of nude children as well as graphic
drawings of the type of photos the author is seeking.
Prison officials discovered the flyer in a box of materials
in the possession of another inmate at F.C.I. Petersburg,
Randall Russell Bland. The box was searched in February 2010 as
Bland was set to be released from prison following completion of
his sentence for distribution of child pornography. The box
contained several dozen copies of the flyer in envelopes that
had been addressed to various individuals in foreign countries.
In particular, two of the envelopes were addressed to Buddhika
1
Sebolt had previously been convicted of two or more
offenses relating to the sexual exploitation of children,
subjecting him to a 35-year mandatory minimum term of
imprisonment. 18 U.S.C. § 2251(e).
2
As discussed further below, the government contends that
several of the challenged exhibits are intrinsic to the charged
offense and that the flyer was therefore not the sole basis for
the prosecution.
4
Jinadari and Roda Tekeste, women living in Sri Lanka and
Ethiopia, respectively. The government contended that Sebolt
gave Bland the flyers for Bland to deposit in the mail once he
was out of prison. The flyer instructs recipients to mail the
requested photographs to “Phil c/o Russell Cain” at a mail route
box address in Salem, West Virginia. At trial, Bland testified
that Russell Cain is his given name, and that the address
belonged to an aunt of his.
Prior to Sebolt’s trial, the government submitted notice of
its intent to introduce evidence pursuant to Rule 404(b).
Specifically, the government planned to introduce five letters
sent to or from Sebolt while in prison. The documents were
discovered by prison officials monitoring Sebolt’s mail.
The first two exhibits were 2006 and 2007 handwritten
requests to book publishers seeking information on two books:
“Children: A Picture Archive of Permission-Free Illustrations”
and “Children Are Children: Photographs from Nine Countries.”
The requests, which were signed by Sebolt and included his
Federal Bureau of Prisons register number (“BOP number”), 3 asked
whether the books contained photos or illustrations.
3
At oral argument, Sebolt conceded that he is the author or
intended recipient of each of the five challenged exhibits.
5
The third document was a 2007 letter signed by Sebolt and
addressed to an individual named Candy Brown. The letter
offered Ms. Brown twenty dollars in exchange for explicit photos
of young women. The letter also contained detailed instructions
for creating a compartment on the inside of store bought
greeting cards in which the photos could be hidden and mailed
into the prison undetected.
The fourth document was a December 2008 Christmas card from
Sebolt to Ms. Jinadari in Sri Lanka. The card contained a
hidden compartment like the one described in the letter to Ms.
Brown. Inside the compartment was a letter from Sebolt
discussing his “photo collecting hobby” and offering to send Ms.
Jinadari money in exchange for photographs. The letter did not
discuss the type of photographs requested, but it noted the need
for secrecy and instructed Ms. Jinadari to send the photos in a
similar hidden compartment.
The fifth and final challenged document was a December 2008
greeting card sent to the defendant by Ms. Tekeste in Ethiopia.
Inside the card was a hidden compartment containing a photograph
of a nude female toddler in a sexually suggestive pose. Along
with the photograph was a letter from Ms. Tekeste to Sebolt
thanking him for money he had previously sent her and indicating
6
that the photo was provided in response to Sebolt’s request for
help with his “hobby.” 4
Sebolt filed a motion in limine seeking to exclude the five
proposed exhibits as improper character evidence. His argument
in support of the motion made clear that his primary defense in
the case would be that someone else –- likely Bland –- authored
the flyer in question. Sebolt argued that he “was not in
possession of the flyer or any of the letters [when they were
found]. . . . [Instead] it was the government’s key witness,
Randall Bland, who had the flyer, who had other items, who had
mail.” J.A. 71-72.
The district court denied the defendant’s motion to exclude
the evidence, ruling that the letters were admissible to show
“proof of motive, opportunity, intent, preparation, planning,
knowledge, identity, or absence of mistake or accident” under
Rule 404(b). Specifically, the court noted that the defendant
had made the identity of the flyer’s author a key issue in the
case:
I can’t help but note that counsel just argued that
Mr. Bland had this pamphlet in his possession, and it
sounds to me like [the defendant] was trying to point
the finger at him as the criminal agent in this case.
4
The letter states, “Phil really I don’t know what sense to
give the people children nacked [sic] photos. In my way, I
don’t care for the nacked [sic] children photos also I’m not
agree by these hobby [sic].” J.A. 406.
7
So establishing identity is apparently an issue that’s
not just hypothetical, but that is an issue in this
case.
J.A. 71-72.
In addition to the five challenged documents discussed
above, the government introduced several other materials
attempting to link Sebolt to the flyer. One such item, also
found in Bland’s possession, was a series of form letters to
book publishers and prison book programs requesting books on
child care, child development, artistic nudity, and nomadic and
indigenous tribes throughout the world. The letters requested
that the books contain photographs and that nudity was
preferred. Each of the letters contained Sebolt’s name and BOP
number.
The government also introduced a National Geographic book
that was discovered in a locker in Sebolt’s cell. The back
cover of the book contained a hidden compartment, in which were
photographs of nude children that matched the photographs found
in the flyer. 5
5
Also found in Bland’s box, and introduced at trial, was a
letter written to Ms. Tekeste that was signed in Sebolt’s name
and BOP number. The letter offered Ms. Tekeste the opportunity
to earn money in exchange for sexually graphic photos of a child
named Ezana. The letter also included sexually graphic sketches
similar to those included on the flyer. The letter requested
that the pictures be sent to “Phil c/o Russell Cain” at the same
mailing address found in the flyer.
8
At trial, Sebolt continued to deny any involvement in
creating the flyer. In pointing the finger at Bland, he
repeatedly referenced Bland’s past history with child
pornography and the fact that the flyer was found in Bland’s
possession. In his closing argument, the defendant stated that
“it is Mr. Bland who is the real culprit in this.” J.A. 255.
Sebolt also specifically denied that the National Geographic
book found in his cell belonged to him.
At the conclusion of trial, the district court found Sebolt
guilty. The court relied in part on the Rule 404(b) evidence,
stating that “the evidence shows that the pamphlet or flyer is
very similar in writing to other items which are pretty clearly
linked to Mr. Sebolt.” J.A. 261. The court also noted that the
photographs in the flyer were the same as those in the National
Geographic book found in Sebolt’s cell, and that the book
contained a secret compartment that was just like those in the
greeting cards.
At sentencing, the court increased Sebolt’s criminal
history category from IV to V, finding him to be a “repeat and
dangerous sex offender” pursuant to U.S.S.G. § 4B1.5. The court
also applied a two-level enhancement for distribution pursuant
to U.S.S.G. § 2G2.1(b)(3). Sebolt’s total offense level was
determined to be 38, resulting in a Sentencing Guideline range
9
of 420 months to life. 6 Noting an intention to sentence the
defendant to the high-end of his Guidelines range, the court
imposed a sentence of life in prison.
II.
A.
As an initial matter, the government briefly contends that
the December 2008 letters are intrinsic to the charged offense
and are therefore outside the scope of the Rule 404(b) analysis.
See United States v. Otuya, 720 F.3d 183, 188 (4th Cir. 2013).
We have held that other bad acts evidence is intrinsic to the
charged offense “if, among other things, it involves the same
series of transactions as the charged offense, which is to say
that both acts are part of a single criminal episode.” Otuya,
720 F.3d at 188 (internal quotation marks and citations
omitted). We find no merit in the government’s contention that
the 2008 letters constituted the beginning of a single criminal
enterprise that continued through the attempted dissemination of
the flyer in 2010. The 2008 letters were personal
correspondences with specific individuals concerning requests to
directly provide Sebolt with pornographic images in prison. In
6
Sebolt faced a statutory mandatory minimum sentence of 420
months because of his two prior convictions. See 18 U.S.C.
§ 2251(e).
10
contrast, the flyers were general advertisements for child
pornography that requested the photographs be mailed to an
address outside the prison. Additionally, the government has
put forth no evidence that Sebolt continued to communicate or
request child pornography from these or any other individuals
during the 14-month interim. Accordingly, we will analyze all
of the challenged exhibits under Rule 404(b), reviewing for
abuse of discretion. See United States v. McBride, 676 F.3d
385, 395 (4th Cir. 2012).
Generally, evidence of “a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the
character.” Fed. R. Evid. 404(b)(1). Such evidence, however,
“may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Id. 404(b)(2).
Importantly, Rule 404(b) is “an inclusive rule, admitting all
evidence of other crimes or acts except that which tends to
prove only criminal disposition.” United States v. Powers, 59
F.3d 1460, 1464 (4th Cir. 1995) (emphasis in original) (quoting
United States v. Percy, 765 F.2d 1199, 1203 (4th Cir. 1985)).
We apply a four-part test for determining the admissibility
of extrinsic acts evidence. To be admissible, the evidence must
be (1) relevant to an issue other than the general character of
11
the defendant; (2) necessary to prove the charged offense; (3)
reliable; and (4) its probative value must not be substantially
outweighed by any prejudicial effect, as measured by Rule 403.
United States. v. Lighty, 616 F.3d 321, 352 (4th Cir. 2010).
Applying these principles to the facts of this case, we agree
with the district court that the five exhibits were admissible
for the purpose of proving that Sebolt created the flyer.
Looking first at the question of relevancy, as a general
matter, this is not a difficult standard to meet. To be
relevant, the evidence “need only to have any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” United States v. Aramony, 88
F.3d 1369, 1377 (4th Cir. 1996) (internal quotation marks
omitted). Of course, central to the Rule 404(b) analysis is the
requirement that the evidence be relevant for some reason “other
than the general character of the defendant . . . .” United
States v. Hodge, 354 F.3d 305, 312 (4th Cir. 2004). We conclude
that each of the five pieces of evidence in question provided a
link between Sebolt and the flyer without improperly implicating
the question of his character. First, the 2008 letters to Ms.
Jinadari and from Ms. Tekeste established pre-existing
relationships between Sebolt and these individuals. This is
important because they were both intended recipients of copies
12
of the flyer found in Bland’s possession. It is also clear from
the letters that these relationships were centered on secretly
exchanging photographs for money. Thus, the letters make it
more likely that the flyer, which sought to exchange nude photos
of children for money with these same individuals, was created
by Sebolt and not Bland, who had no similar connection with Ms.
Jinadari and Ms. Tekeste. Additionally, the government’s
handwriting expert testified that it was highly probable that
the same person who drafted the letter to Ms. Jinadari, which
was signed in Sebolt’s name and BOP number, also created the
flyer.
Next, the March 2007 letter to Candy Brown was relevant to
showing that the National Geographic book found in Sebolt’s cell
belonged to him, a fact he specifically put in dispute at trial.
The district court noted that the book contained a secret
compartment similar to the one in the greeting cards, the design
of which was discussed in detail in the letter to Ms. Brown.
Thus, the letter made it more likely that the book belonged to
Sebolt, which in turn helped show that the flyer, which
contained the same photographs found in the book, was created by
him.
Finally, the 2006 book requests provided yet another
connection between Sebolt and the flyer. The requests were
similar to other request forms found in Bland’s box and signed
13
by Sebolt. The requests therefore indicated that at least some
of the materials found alongside the flyer belonged to Sebolt.
Although this connection was to some extent similar to those
demonstrated by the other materials, it supported the
Government’s contention that Sebolt was the source of the
documents found in Bland’s box, including the flyers, and that
he gave Bland the documents to safely place in the mail
following his release from prison.
In all of these ways, the disputed evidence did more than
merely establish Sebolt’s propensity for soliciting child
pornography. To the contrary, they each indicated a specific
connection between Sebolt and the flyer that helped show he was
its author.
The defendant notes that our case law concerning 404(b)
evidence admitted for the purpose of proving identity has
generally required that the other acts demonstrate a “signature
crime” or “modus operandi.” See, e.g., United States v. Haney,
914 F.2d 602, 607 (4th Cir. 1990). He contends that this degree
of similarity is lacking in this case. We simply disagree, and
are comfortable concluding that handwritten communications
concerning the exchange of money for photos with two specific
individuals in distant countries, as well as repeated references
to secret photo-storing compartments on the inside of greeting
cards, satisfies this requirement.
14
For many of the same reasons that the exhibits were
relevant, each was also necessary to proving the government’s
case. See McBride, 676 F.3d at 396 (stating that the relevancy
and necessity factors, “which embody overlapping concerns, are
often considered in tandem”). Evidence is necessary when it is
“an essential part of the crimes on trial” or it “furnishes part
of the context for the crime.” United States v. Byers, 649 F.3d
197, 209 (4th Cir. 2011). The primary issue at trial was
whether Sebolt created the flyer. Given that the copies of the
flyer were found in Bland’s possession, it was necessary for the
government to establish a connection to Sebolt through other
means. It did so by using similarities in the handwriting, the
intended recipients, and the content of the flyer and other
works attributed to Sebolt. Without this evidence, the
government would have been forced to rely largely on the word of
Bland, a convicted felon and the person at whom Sebolt was
pointing the finger. Given these circumstances, we conclude
that the disputed exhibits satisfy the necessity requirement of
our Rule 404(b) analysis.
Turning next to the reliability prong, there is no reason
to think that the 404(b) evidence was not reliable. The
witnesses through which the exhibits were introduced were cross-
examined by the defendant, see Queen, 132 F.3d at 998, and there
was no indication of bias or untruthfulness on their part, see
15
id. Additionally, although the defendant insinuated at trial
that he had no knowledge of or involvement with any of the
disputed exhibits, they all bore sufficient indicia that he was
the author or intended recipient of each, as counsel has now
acknowledged.
Finally, as with all evidence, proposed Rule 404(b)
evidence must not be substantially more prejudicial than
probative to the defendant, as determined by Rule 403. Byers,
649 F.3d at 210. We have previously acknowledged that, in the
context of a bench trial, there is less concern that the finder
of fact will utilize evidence for an improper purpose. See
United States v. Hassanzadeh, 271 F.3d 574, 578 (4th Cir. 2001)
(“[W]e have confidence that at the bench trial, the experienced
district judge was able to separate the emotional impact from
the probative value of this potentially prejudicial evidence.”);
see also Shultz v. Butcher, 24 F.3d 626, 632 (4th Cir. 1994)
(holding that in civil bench trials “evidence should not be
excluded under [Rule] 403 on the ground that it is unfairly
prejudicial”). Indeed, we are unable to find a single published
case in which a court of appeals reversed a district court’s
admission of extrinsic evidence in a bench trial. For all of
the reasons previously stated, as well as our confidence in the
district court’s ability to sort through any potentially
16
prejudicial impact of the disputed evidence, we decline to be
the first. We therefore affirm the defendant’s conviction.
B.
The defendant also challenges the procedural reasonableness
of his sentence. He argues, and the government concedes, that
the district court improperly increased his criminal history
category from IV to V after finding that he was a repeat and
dangerous sex offender under U.S.S.G. § 4B1.5. We agree. 7
Section 4B1.5 of the Guidelines increases a defendant’s
criminal history category to V when the defendant’s offense of
conviction is a covered sex crime and the defendant has at least
one prior sex offense conviction. However, § 4B1.5’s
application notes explicitly exclude from the definition of
covered sex crime, among other things, “trafficking in, receipt
of, or possession of, child pornography . . . .” U.S.S.G.
§ 4B1.5 cmt. n.2. The defendant’s prior conviction was for
violating 18 U.S.C. § 2251(d)(1)(A), which criminalizes
advertising “to receive, exchange, buy, produce, display,
distribute, or reproduce[] [child pornography] . . . .” Because
7
The defendant did not object to this issue at sentencing,
and so our review is for plain error. United States v. Cotton,
535 U.S. 625, 631 (2002). Plain error exists where the
defendant can establish that an error occurred, that it was
plain, and that it affected the defendant’s substantial rights.
United States v. Olano, 507 U.S. 725, 732-36 (1993).
17
that statute includes both conduct that falls within the
exception in § 4B1.5, i.e., “trafficking in, receipt of, or
possession of, child pornography,” as well as conduct that is
not exempted, i.e., the production of child pornography, it is
appropriate to apply the modified categorical approach to
determine the precise scope of the crime of conviction. See
Descamps v. United States, 133 S. Ct. 2276, 2284-2286 (2013).
However, the government concedes that it has no Shepard-approved
documents showing that Sebolt was engaged in the production of
child pornography. See Shepard v. United States, 544 U.S. 13,
16 (2005). Without these, it is unable to show that Sebolt’s
conviction was for conduct that is not exempted from the covered
sex crime definition in U.S.S.G. § 4B1.5 cmt. n.2. It was
therefore error to apply the enhancement and increase the
defendant’s criminal history category to V.
Further, it is clear that the error harmed Sebolt’s
substantial rights. Had he been sentenced under a criminal
history category IV, his Guidelines range would have been 324 to
405 months which becomes the statutory mandatory minimum of 420
under U.S.S.G. 5G1.1(b), instead of 420 months to life, assuming
the same total offense level. Because the district court stated
its intention to sentence Sebolt “at the very top of the
guidelines,” J.A. 341, the sentence of life imprisonment clearly
harmed him. We therefore vacate the defendant’s sentence and
18
remand the case for resentencing. In light of the remand, we
need not reach the defendant’s second argument that the district
court erred in applying a two-level enhancement for distribution
of child pornography under U.S.S.G. § 2G2.1(b)(3). The
defendant is free to again raise that objection in the district
court if he wishes.
III.
For the reasons stated, we affirm the defendant’s
conviction, vacate his sentence, and remand for resentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
19