United States v. James Owens ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1279
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JAMES O WENS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:08-cr-164—Larry J. McKinney, Judge.
A RGUED O CTOBER 7, 2009—D ECIDED N OVEMBER 6, 2009
Before R IPPLE, K ANNE, and S YKES, Circuit Judges.
K ANNE, Circuit Judge. James Owens pled guilty to
transportation of child pornography in violation of
18 U.S.C. § 2252(a)(1) and (b)(1) and possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B)
and (b)(2). Owens’s plea agreement included a stipula-
tion of the sentencing guidelines offense level calculation,
including all aggravating and mitigating sentencing
factors, except for one enhancement. The parties could
2 No. 09-1279
not agree on the applicability of U.S.S.G. § 2G2.2(b)(3)(B),
which comes into play when a defendant expects to
receive a thing of value in exchange for his distribution
of child pornography. Owens maintains that he should
receive only a two-level enhancement because he did not
expect to receive anything of value, and even if he did
have an expectation, that expectation was of “role play”
and not of a sexual encounter. The government main-
tains that Owens did expect to receive a sexual en-
counter, and accordingly, the five-level enhancement
was appropriate. The district court agreed with the gov-
ernment and sentenced Owens to a term of 360 months’
imprisonment. Owens appealed the enhancement to
his sentence, and we now affirm.
I. Background
Owens frequented an internet chat site known as “Incest
Taboo Forum.com.” In July 2008, Owens began a dis-
cussion with “Erica,” a divorced mother of an eight-year-
old girl and a twelve-year-old boy. Unbeknownst to
Owens, Erica was actually Detective Dan Claasen of
the Fishers, Indiana Police Department, who was investi-
gating online offenses against children.1
After Owens sent Erica an introductory message, he
did not contact her again until August 2008. During
this chat session, Erica disclosed that she had been mo-
1
For purposes of continuity and readability, throughout
this opinion we will refer to “Erica” as if she were a real person.
No. 09-1279 3
lested by her stepfather as a child. Owens admitted to
having a sexual relationship with a close female
relative, beginning when the girl was twelve and con-
tinuing until she was seventeen. The two also dis-
cussed whether Erica was “active” with her children
and Owens’s preference for children between the ages
of eight and thirteen. Saving the graphic details, this
discussion culminated in Owens expressing his goal of
establishing a sexual relationship with Erica and her
children.
In a third chat session a few days later, Owens offered
to send Erica a child pornography video called
“littlegirlsmix” in an effort to stimulate role play between
him and Erica. Erica accepted the offer and Owens then
transferred the video, along with his graphic description
of its contents. After a brief role play discussion, Owens
and Erica agreed to meet in person the following
day at a coffee shop in Fishers, Indiana. In planning the
meeting, Owens asked Erica how her kids would react
to his introduction into the family. He explained, “we
you and I have lived it the kids haven’t yet.” (App. at 12.)
Erica replied, “that’s why I see it as more of a journey,
how a family lives instead of little individual times when
something may happen.” (Id.) Owens then said, “the
question is how are we gonna live do we start as
nudist at home to get them used to the idea or how do
we introduce them to it.” (Id.) Erica responded, “oh yes,
I am very open about my sexuality and am not embar-
rassed with nudity.” (Id.) The two then made final ar-
rangements to meet the following day.
4 No. 09-1279
Police arrested Owens when he arrived the next day
at the coffee shop. He made a Mirandized statement
admitting to his illegal transfer of the video to Erica.
He also admitted to having molested his female relative
when she was a child, a fact later confirmed by inves-
tigating officers. When Owens consented to a search of
his vehicle, two more child pornography videos were
discovered. A subsequent search of Owens’s home led
to the recovery of additional child pornography videos.
The videos recovered in Owens’s car and home formed
the basis for the second count in the indictment, possession
of child pornography.
The sole question in this case is whether Owens
expected to receive a thing of value in exchange for his
transmission of child pornography. The answer to this
question determines whether Owens receives a five-
level or a two-level sentencing enhancement, and conse-
quently, whether the applicable guidelines range is re-
duced from between 360 months, and life imprisonment
to between 262 and 327 months’ imprisonment.
II. Analysis
The starting point of our analysis is the statute itself,
U.S.S.G. § 2G2.2(b)(3), which provides:
(b) Specific Offense Characteristics . . .
(3) (Apply the greatest) If the offense in-
volved: . . .
(B) Distribution for the receipt, or
expectation of receipt, of a thing of
No. 09-1279 5
value, but not for pecuniary gain,
increase by 5 levels. . . .
(F) Distribution other than distri-
bution described in subdivisions
(A) through (E), increase by 2 lev-
els.
Case law has resolved many of the questions raised by this
statutory language. For example, in United States v. Whited,
the Seventh Circuit held that sexual contact can
be considered a thing of value under the statute. 539
F.3d 693, 698-99 (7th Cir. 2008). The Whited court also
held that “expectation of receipt” does not require an
explicit agreement or precise bargain. Id. at 699. Rather,
reasonable anticipation or reasonable belief is enough
to trigger the enhancement. Id.
In light of Whited, the sole question in this case can
be answered by resolving whether Owens had a rea-
sonable expectation of receipt of a thing of value, and, if
so, whether that reasonable expectation was of role play
or of a sexual encounter. The district court found that
Owens reasonably expected receipt of a sexual encounter,
and we review that sentencing decision de novo as to
questions of law and for clear error as to factual findings
and the application of the guidelines. United States
v. Stitman, 472 F.3d 983, 986 (7th Cir. 2007).
In this case, Owens argues that he did not actually
expect a sexual encounter; rather, he merely “hoped” that
his conversations with Erica would lead to a sexual
relationship. But, as we noted in Whited, “ ‘expectation
6 No. 09-1279
of receipt’ under § 2G2.2(b)(3)(B) does not require an
explicit agreement or precise bargain. . . . Distribution of
child pornography in the reasonable anticipation or
reasonable belief of receiving a thing of value is enough
for the enhancement to apply.” 539 F.3d at 699. Although
Owens did not have an explicit agreement or precise
bargain with Erica, the content of his conversations lead
us to the conclusion that Owens reasonably anticipated
or believed that his exchange of child pornography
would result in a sexual encounter with Erica and her
children. This conclusion results from Owens’s own
statement about enjoying “moms with kids, dads with
kids and both together”; his confession of a past rela-
tionship with a minor; his desire to meet Erica; and his
proposals to introduce Erica’s children to sexual experi-
ences. Owens clearly anticipated receipt of a sexual
encounter, and his transmittal of the pornography only
served to further his goal.
But Owens argues that even if we find that he expected
to receive something in exchange for his distribution,
that expectation was for role play only and, therefore, was
not in expectation of a thing of value. To lend credence
to his argument, Owens argues that his transmission of
pornography occurred during a conversation in which
the context was role play, and not an actual sexual en-
counter. This argument is unavailing for two reasons.
First, although Owens argues that he expected only role
play, his own conversations demonstrate otherwise.
During his discussions with Erica, Owens repeatedly
stated that he was uninterested in role play because he
No. 09-1279 7
“suck[ed] at it.” (See App. at 7, 9.) And even though
Owens engaged in some role play after Erica’s numerous
prompts, his involvement in the role play was brief
and fleeting. Owens’s post hoc argument that he was
expecting to receive role play in exchange for his transmis-
sion of pornography is unpersuasive.
Second, Owens argues that it was impossible for him
to expect receipt of a sexual encounter when he sent the
video during a conversation about role play and not
about sex. As we made clear in Whited, however, the
transfer of images need not be contemporaneous with
the sexual encounter for the defendant to harbor an
expectation of sex. In Whited, the defendant transmitted
“child pornography images to an e-mail correspondent
with whom he was trying to arrange a sexual encounter.”
539 F.3d at 695. Importantly, the proposed sexual en-
counter was not contemporaneous with the transmission
of the pornography. Instead, the defendant sent the
images to his correspondent to satisfy the latter until
the sexual encounter could take place. Id. at 696. This
case is no different. Here, Owens sent Erica images with
the end goal of obtaining a sexual relationship with her
and her children. Although he did not send the images
concurrent with an actual sexual encounter, Owens
did send the images with the expectation that this trans-
mission would lead to a future sexual encounter. This is
all that is required.
Further supporting our decision is the fact that the
statute itself contains no temporal component. There is no
requirement in § 2G2.2(b) that the defendant send the
8 No. 09-1279
images contemporaneously with receipt of the thing of
value. Therefore, the mere fact that Owens expected to
receive a thing of value in the future as opposed to imme-
diately upon transmission is of no consequence.
III. Conclusion
Owens transmitted child pornography with the end goal
of receiving a thing of value, namely sex, from the recipi-
ent. Because Owens’s ultimate goal was a sexual en-
counter with Erica and her children, and because neither
the statute nor our precedent contain a temporal compo-
nent in conjunction with the transfer, we A FFIRM
the sentence.
11-6-09