United States v. Michael Macaluso

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11481 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 9, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-00170-RWS-CCH-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllllllll lPlaintiff-Appellee,
versus
MICHAEL MACALUSO,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 9, 2012)
Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Michael Macaluso appeals his convictions and 360-month sentence for
inducing a minor to produce pornography, in violation of 18 U.S.C. § 2251(a);
distributing child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A);
receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A); and
attempting to induce a minor to engage in illegal sexual activity, in violation of 18
U.S.C. § 2422(b). After a thorough review of the record, we affirm.
I. The Offenses
Macaluso was charged with eight counts of child-pornography-related
crimes. Counts One through Four involved a fourteen-year-old boy named Jason.
According to the evidence at trial, Macaluso contacted Jason through a social
networking site and, over time, the two engaged in numerous conversations. At
first, the two exchanged clothed photographs, but eventually Macaluso asked
Jason to create sexually explicit images and videos. Jason sent Macaluso several
images, videos, and drawings. The two continued to communicate until
Macaluso’s messages became erratic and he began to express suicidal thoughts.
Jason then terminated his contact with Macaluso.
Several months later, however, Macaluso contacted Jason again. When
Jason refused to make and send additional explicit images and videos, Macaluso
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threatened to “out” Jason to his entire school. Jason contacted the police, who
eventually traced the email IP address to an apartment shared by Macaluso and his
partner Paul Hobbs. A search of that apartment uncovered computers, external
hard drives, disks, and CDs. Macaluso told police that all the computer equipment
belonged to him. Police confirmed that Hobbs was not home on the day of one of
the chats between Jason and Macaluso.
Both computers contained images of minor boys, but none of the images
were of Jason. On one computer, experts found a folder in Macaluso’s name with
the screen name used to contact Jason. Jason’s Facebook page was also
“bookmarked.” The two hard drives found contained documents belonging to
Macaluso, and there was no evidence Hobbs accessed these drives. One of the
hard drives contained 3,200 separate folders organized by name, usually by boys’
names. These folders held pornographic images of boys, including Jason. After
his arrest on state charges in connection with these images, Macaluso instructed
his attorney to tell police that he alone was responsible and Hobbs was not
involved.
Counts Five through Eight involved a thirteen-year-old boy named Zachary.
According to the evidence at trial, Macaluso posed as a sixteen-year-old girl and
exchanged sexual images with Zachary. Macaluso was very specific about the
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images he wanted Zachary to send him. He instructed Zachary to take naked
photos holding various signs. In one photo, Zachary held a sign reading “Happy
Birthday Michael. I love you forever.” This photograph was date-stamped on
Macaluso’s birthday. When Zachary later tried to end the relationship, Macaluso
threatened to post the images on the internet. Zachary’s parents found some of the
photographs and contacted police, who traced the IP address to a home where
Macaluso was staying. A search of the home found multiple computers and
external hard drives. Experts uncovered images of Zachary on Macaluso’s
computer, which was password protected. Experts also found a collection of child
pornography on one of the external hard drives. The two hard drives held over
3,000 folders, several of which contained photographs of Zachary. After
Macaluso was indicted on federal charges, agents searched his offices and seized a
laptop computer with links to Zachary’s Myspace page.
II. The Trial
The government proffered transcripts of the instant messenger chats
between Macaluso and the two victims. Macaluso objected to the evidence as
unauthenticated, irrelevant, and hearsay. The court admitted the evidence because
the victims were able to testify to the contents. The court also admitted, over
Macaluso’s objection, Exhibit 126, which consisted of screen shots from a web-
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camera interaction between Macaluso and another person in which Macaluso and
the name Michael were visible. The shots were sexual in nature and, during the
video session, Macaluso instructed the young man to engage in sexual positions
that were similar to the positions Jason and Zachary had used. The court
concluded that the evidence was relevant because it was found on the same hard
drive as the images of Zachary and thus could show usership. The court did not
admit any images from the computer seized at Macaluso’s office.
Macaluso called Tyler Fridley, who testified that he was with Macaluso on
the night Macaluso allegedly sent some of the emails to Jason. Fridley stated that
he had not seen Macaluso use a computer or cell phone that night.
The court instructed the jury that it could convict Macaluso if he “induced”
a minor to engage in sexually explicit conduct. The court defined “induce” as “to
stimulate the occurrence or to cause.” The court did not use the term “knowingly.”
Macaluso objected on the ground that omitting the “knowingly” requirement
constructively amended the indictment. The court overruled the objection. The
jury convicted Macaluso of all counts.
III. Sentencing
In determining the applicable guideline range, the probation officer noted
that the 18 U.S.C. § 2252A(a)(2)(A) counts were grouped together (Counts Two,
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Three, Six, and Seven). The remaining counts under § 2251(a) (Counts One and
Five) and § 2422(b) (Counts Four and Eight) could not be grouped. The probation
officer applied two enhancements relevant to the issues on appeal: First, under
U.S.S.G. § 2G2.1(b)(4), Macaluso faced an enhancement for sadistic conduct
based on images of Jason penetrating himself with a screwdriver and candle.
Second, under § 2G2.2(b)(3)(D), his guideline range was enhanced because he
distributed child pornography to a minor to induce the victim to engage in illegal
activity. The resulting guideline calculations resulted in a combined adjusted
offense level of 47 and a criminal history category I, which yielded a range of life
imprisonment.
Macaluso objected to the two enhancements listed above. The district court
overruled the objections. In imposing sentence, the court stated that it had
considered the sentencing factors in 18 U.S.C. § 3553(a) and the arguments on
both sides. The court noted the “heinous” nature of the crimes and how serious
the offenses were. The court considered the need to punish Macaluso, deter future
conduct, offer rehabilitation, and protect the public. The court also considered
disparity in sentences for similar crimes. Stating that a “substantial sentence is
warranted in this case,” the court sentenced Macaluso to 360 months’
imprisonment on Counts One, Four, Five, and Eight, and 240 months’
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imprisonment on the remaining counts, all to run concurrently.
IV. The Appeal
Macaluso now appeals, raising the following issues: (1) the evidence was
insufficient to support his convictions; (2) the district court erred in admitting
images of Macaluso engaging in a sexually explicit video-chat and images of child
pornography that were unrelated to the charged conduct; (3) the court erred in
denying his motion for a mistrial based on prosecutorial misconduct; (4) the court
erred in admitting evidence of purported online communication between Macaluso
and the victims because the messages were not properly authenticated; (5) the
court erroneously instructed the jury on the elements of inducing a minor to
produce pornography; and (6) the court erred in applying enhancements when
calculating the guideline range. We address each issue in turn.
A. Sufficiency of the Evidence1
We review de novo a district court’s denial of a judgment of acquittal on
sufficiency of the evidence grounds. United States v. Browne, 505 F.3d 1229,
1253 (11th Cir. 2007). We “must view the evidence in the light most favorable to
the government and decide whether a reasonable fact finder could have reached a
1
Macaluso moved for judgment of acquittal at the close of the government’s case-in-chief
and again after he presented his defense. Thus, he has preserved his challenge to the sufficiency of
the evidence.
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conclusion of guilt beyond a reasonable doubt.” United States v. Herrera, 931
F.2d 761, 762 (11th Cir. 1991). We will not disturb a jury verdict “if any
reasonable construction of the evidence would have allowed the jury to find the
defendant guilty beyond a reasonable doubt.” Id. The “evidence need not be
inconsistent with every reasonable hypothesis except guilt, and the jury is free to
choose between or among the reasonable conclusions to be drawn from the
evidence presented at trial.” United States v. Hernandez, 896 F.2d 513, 517 (11th
Cir. 1990).
In order to convict Macaluso on Counts Four and Eight, attempt to induce a
minor to engage in illegal sexual activity in violation of 18 U.S.C. § 2422(b), the
government must prove beyond a reasonable doubt that Macaluso: (1) intended to
cause assent on the part of the minor to engage in the sexual activity and (2) took a
substantial step toward causing such assent. United States v. Lee, 603 F.3d 904,
914 (11th Cir.), cert. denied, 131 S.Ct. 437 (2010). Additionally, the sexual
activity must be one for which “any person can be charged with a criminal
offense.” 18 U.S.C. § 2422(b). This includes the production of child pornography.
18 U.S.C. § 2427. Further, under the relevant state law, it is unlawful for anyone
to entice or coerce a minor to engage in “any sexually explicit conduct for the
purpose of producing” child pornography. O.C.G.A. § 16-12-100(b)(1).
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As to Counts One and Five, inducement of a minor to engage in sexual
activity for the purpose of producing child pornography in violation of 18 U.S.C.
§ 2251(a), that statute proscribes the same conduct as § 2422(b). Lee, 603 F.3d at
913; United States v. Searcy, 418 F.3d 1193, 1196-97 (11th Cir. 2005) (applying
§ 2251(a) case law to interpret § 2422(b) because “[b]oth statutes aim to
criminalize the enticement of a minor to engage in sexual activity”).
In order to convict Macaluso on Counts Two and Six, distribution of child
pornography in violation of 18 U.S.C. § 2252A(a)(2)(A), the government must
prove that he: (1) knowingly, (2) distributed, (3) child pornography, (4) in
interstate commerce, (5) in the belief that it was child pornography. 18 U.S.C.
§ 2252A(a)(2)(A); United States v. Acheson, 195 F.3d 645, 653 (11th Cir. 1999).
Finally, in order to convict Macaluso on Counts Three and Seven, receipt of
child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A), the government
must prove that he intentionally viewed, acquired, or received child pornography
from an outside source, using any means or facility of interstate commerce.
United States v. Pruitt, 638 F.3d 763, 766 (11th Cir.), cert. denied, 132 S.Ct. 113(2011). Evidence that Macaluso sought out child pornography on the internet and
had a computer or hard drive containing child pornography is circumstantial
evidence that he knowingly received the images. See id.9
Here, the district court properly denied Macaluso’s motions for judgments
of acquittal. From the evidence at trial, the jury reasonably could have concluded
that Macaluso owned all of the seized computers and media storage devices,
which the investigation showed to contain pornographic images of Jason and
images that Macaluso had sent to Jason. A computer seized from Macaluso’s
apartment was used to access instant messaging accounts associated with
Macaluso, Jason’s Facebook profile, and the website where Jason and Macaluso
first made contact. Moreover, a computer recovered from Macaluso’s bedroom
also was used to contact that victim. Other files stored on the
devices—photographs of Macaluso and Hobbs, a document authored by
Macaluso, and files associated with Macaluso’s business—further established that
Macaluso used the devices.
Additionally, the evidence showed that pornographic images Zachary sent
to Macaluso were stored on the hard drives recovered from Macaluso’s residence.
In some of these images, Zachary held signs referencing “Michael.” The
government traced the screen name Macaluso used to the house where Macaluso
was residing, and a search revealed hard drives containing additional pornographic
images of Zachary and screenshots of a live video-chat between Macaluso and a
young man. Further, Macaluso’s computer, which was password-protected,
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contained two instant messaging accounts associated with Macaluso and evidence
that the user had contacted Zachary. This evidence was sufficient to show that
Macaluso made and distributed child pornography, and that he intended to do so,
as required to convict on Counts Two, Three, Six, and Seven.
Moreover, the victims testified about their communications with Macaluso
and the jury had transcripts of at least one internet chat. This evidence permitted
the jury to conclude that Macaluso attempted to induce the victims to engage in
illegal sexual activity. The plain language of § 2422(b), as clarified by § 2427,
includes the production of child pornography, and the record does not support
Macaluso’s conclusory argument that the victims were somehow not involved in
the production of child pornography. Both victims testified that they, encouraged
or coerced by Macaluso, created and shared sexually explicit images of
themselves. Thus, the evidence was sufficient to convict Macaluso of Counts
One, Four, Five, and Eight.
B. Admission of Images
A district court’s evidentiary rulings are reviewed only for abuse of
discretion. United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009). An
erroneous evidentiary ruling will not result in reversal where the error was
harmless, meaning it did not substantially influence the outcome of the trial and
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the jury’s verdict was supported by sufficient untainted evidence. United States v.
Dickerson, 248 F.3d 1036, 1048 (11th Cir. 2001).
Evidence is relevant if it has “any tendency” to make the existence of a
material fact “more probable or less probable.” Fed. R. Evid. 401. The district
court may nonetheless exclude such evidence if its probative value is substantially
outweighed by the danger of unfair prejudice to the defendant. Fed. R. Evid. 403.
Rule 403 is an extraordinary remedy, which courts should employ “only sparingly
since it permits the trial court to exclude concededly probative evidence.” United
States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006) (quotation omitted).
Accordingly, we view the disputed evidence “in a light most favorable to its
admission, maximizing its probative value and minimizing its undue prejudicial
impact.” Id. (quotation omitted). We have also recognized that, in the context of
child pornography cases, “the nature of the crime itself, and therefore the nature of
the evidence tending to prove it, is emotionally charged” and Rule 403 should not
be used to deprive the prosecution of “its most probative evidence.” Id. at 1296.
Although the government generally may not offer evidence of the
defendant’s “other crimes, wrongs, or acts” to prove the defendant’s bad character
and to suggest that the defendant also committed the charged offense, such
evidence is admissible if it is relevant to other material issues in the case. Fed. R.
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Evid. 404(b); United States v. Calderon, 127 F.3d 1314, 1330 (11th Cir. 1997).
Specifically, the evidence must be (1) relevant to an issue other than the
defendant’s character, (2) sufficient to support a finding that the defendant
actually committed the extrinsic act, and (3) the probative value of the evidence
must not be substantially outweighed by unfair prejudice. Calderon, 127 F.3d at
1330.
At issue is the court’s admission of Exhibit 126—the video chat between
Macaluso and an unidentified male. Viewing the evidence in the light most
favorable to its admission, the district court did not abuse its discretion in
admitting the exhibit. The evidence was probative of a disputed, material issue
and was not unfairly prejudicial. Exhibit 126 was perhaps the strongest and most
direct evidence that Macaluso created the images and, therefore, used the hard
drive. This evidence was particularly probative of usership because it showed
Macaluso engaged in live, one-on-one communication, making it unlikely that
another person controlled the images and transferred them to the hard drive.
Additionally, the district court did not abuse its discretion in admitting the
other images of child pornography. The images were similar to the ones created
by the victims and thus tended to show that the user of the hard drives was the
same individual. Although such images are inherently inflammatory, we cannot
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conclude that the district court abused its discretion by admitting them.
C. Prosecutorial Misconduct
In opening statements at trial, the government stated that Macaluso was the
“common thread” linking images recovered from two residences and that when he
was arrested at his office, he had “yet again another computer . . . and lo and
behold similar images of child pornography.” Macaluso moved for a mistrial on
the ground that the images found at his arrest were not part of the charged
conduct. Alternatively, Macaluso requested the court advise the jury to disregard
the statement. The court agreed to so instruct the jury. Macaluso objected to this
resolution but also stated that he did not really want a mistrial.
Generally, we review de novo a prosecutorial misconduct claim because it is
a mixed question of law and fact. United States v. Eckhardt, 466 F.3d 938, 947
(11th Cir. 2006). We, however, are precluded “from reviewing an issue raised on
appeal if it has been waived through the doctrine of invited error.” United States
v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009). The doctrine of invited error
applies when a party induces or invites the district court into making an error,
particularly where it “is not clear that the defendant was prejudiced thereby.”
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United States v. Lewis, 524 F.2d 991, 992 (5th Cir. 1975).2
Here, Macaluso invited any error, and thus we will not review his claim of
misconduct. Macaluso asked the court to either declare a mistrial or to instruct the
jury to disregard the prosecutor’s comment. The court chose to offer curative
instructions to the jury. Although Macaluso objected, the court had given him the
relief he requested. Moreover, when the court asked for any specific objection to
the instruction, Macaluso responded that he did not really want a mistrial.
D. Authenticity of Evidence
Prior to trial, Macaluso moved to exclude evidence of his alleged online
communications, arguing that the evidence had not been properly authenticated, as
he denied sending or receiving the messages. The district court denied the motion,
stating that testimony of another participant to the conversations would be
sufficient to authenticate the evidence.
A district court’s authentication rulings are reviewed for abuse of discretion.
United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000). Documents are
not admissible at trial unless and until they are properly authenticated by evidence
“sufficient to support a finding that the matter in question is what the proponent
2
Decisions handed down by the former Fifth Circuit before the close of business on
September 30, 1981 are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661
F.2d 1206, 1207 (11th Cir. 1981) (en banc).
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claims.” Fed. R. Evid. 901(a). The proponent merely needs to present sufficient
evidence to make out a prima facie case that the proffered evidence is what it
purports to be. United States v. Caldwell, 776 F.2d 989, 1001-02 (11th Cir. 1985).
Authentication may be accomplished through the testimony of a witness with
knowledge. Fed. R. Evid. 901(b)(1); United States v. Lanzon, 639 F.3d 1293,
1301 (11th Cir.), cert. denied, 132 S.Ct. 333 (2011). We will not disturb a district
court’s determination that a particular piece of evidence has been appropriately
authenticated unless there is no competent evidence in the record to support it.
Caldwell, 776 F.2d at 1001.
Here, the district court did not abuse its discretion by admitting the online
chats and emails because the victims’ testimony that the government’s exhibits
accurately portrayed their online communications with Macaluso was sufficient to
authenticate the evidence.
E. Jury Instructions
Ordinarily, we review de novo a challenge to a jury instruction. United
States v. Tokars, 95 F.3d 1520, 1531 (11th Cir. 1996). A district court commits
per se reversible error when the jury instruction alters the essential elements of the
offense contained in the indictment and broadens the possible bases for
conviction. United States v. Keller, 916 F.2d 628, 633-34 (11th Cir. 1990). Mere
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surplusage in an indictment, however, may be deleted without any legal error.
United States v. Ward, 486 F.3d 1212, 1227 (11th Cir. 2007).
Where the defendant molds his defense to rebut the mens rea alleged in the
indictment, the district court may not instruct the jury on a lesser standard of
culpability. United States v. Cancelliere, 69 F.3d 1116, 1122 (11th Cir. 1995).
When the statute does not contain a knowledge requirement, its inclusion in the
indictment is mere surplusage. United States v. Deverso, 518 F.3d 1250, 1258 n.2
(11th Cir. 2008) (noting that “Congress defines the elements of an offense, not the
charging document” and referring to Cancelliere as an “exception to the general
rule regarding surplusage in the indictment”).
Here, Macaluso challenges the instructions given for Counts One and Five.
But Macaluso invited any error. The court indicated that it would include
“knowingly” in either all or none of its instructions to the jury, and Macaluso
responded that he would “go without the knowingly.” In any event, jury
instructions for offenses under § 2251 need not include a “knowing” requirement,
as the statute does not contain the term “knowingly.” See 18 U.S.C. § 2251(a); see
also Eleventh Circuit Pattern Jury Instructions Criminal 82 (2010).
F. Sentencing Enhancements
We review a district court’s findings of fact under a clear error standard and
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its legal conclusions de novo. United States v. Jordi, 418 F.3d 1212, 1214 (11th
Cir. 2005). “For a factual finding to be clearly erroneous, this court, after
reviewing all of the evidence, must be left with a definite and firm conviction that
a mistake has been committed.” United States v. Rodriguez-Lopez, 363 F.3d 1134,
1137 (11th Cir. 2004) (quotation omitted).
1. § 2G2.1 enhancement
The sentencing guidelines provide for an enhancement in the base offense
level if the offense involved images portraying “sadistic or masochistic conduct or
other depictions of violence.” U.S.S.G. § 2G2.1(b)(4). Sadistic conduct includes
the infliction of pain or cruelty. United States v. Hall, 312 F.3d 1250, 1261 n.13
(11th Cir. 2002) (interpreting U.S.S.G. § 2G2.2(b)(3) (2001), which contains the
same language as § 2G2.1(b)(4)). We presume that vaginal or anal penetration of
a young child is necessarily painful and, thus, is sadistic. Id. at 1262-63; United
States v. Caro, 309 F.3d 1348, 1352 (11th Cir. 2002).
Here, the district court properly applied the § 2G2.1(b)(4) enhancement.
The evidence showed that the offense involved images portraying painful and
humiliating sex acts. Jason testified at trial that he took photographs of himself
performing sexual acts with a screwdriver and a candle. Likewise, Zachary took
videos and photographs of himself “penetrating his anus with a sex toy, and
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urinating on himself, and ejaculating on himself.” Additionally, Macaluso
stipulated at the sentencing hearing that the acts portrayed in the images were
painful for one victim. Thus, there is no merit to Macaluso’s argument that the
enhancement would not apply.
2. § 2G2.2 enhancement
The guidelines also provide for an enhancement in the base offense level if
the offense involved distribution of child pornography to a minor “that was
intended to persuade, induce, entice, coerce the minor to engage in any illegal
activity” other than activity “covered under subdivision (E).” U.S.S.G.
§ 2G2.2(b)(2)(D). Subdivision (E) provides for a seven-level sentence increase if
the offense involved distribution to a minor “that was intended to persuade,
induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited
sexual conduct.” Id. at (b)(2)(E). This includes the production of child
pornography. U.S.S.G. § 2A3.1 comment. (n.1) (definition incorporated by
U.S.S.G. § 2G2.2 comment. (n.1)).
Here, based on the plain and ordinary meaning of the guidelines language,
the district court properly applied the enhancement. Macaluso’s sentencing
objections were substantively the same as his motion at trial for judgments of
acquittal on Counts Four and Eight, for which the jury ultimately convicted him.
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The government presented evidence that Macaluso sent child pornography to the
victims, and requested (and later insisted) that the victims create and send
pornographic images of themselves in exchange. Additionally, Macaluso did not
object to the PSI’s statement that he sent child pornography in exchange for the
victims’ self-created images; thus, he has admitted this. See United States v.
Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (explaining that unobjected-to facts
in a PSI are deemed admitted). Moreover, Macaluso’s argument that the victims
were not involved in the production of child pornography is contrary to the
evidence in the record, including the testimony of both victims that they created
sexually explicit images of themselves at Macaluso’s behest.
V. Conclusion
Accordingly, we affirm Macaluso’s convictions and sentences.
AFFIRMED.
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