United States v. Puglisi

10-2586-cr
USA v. Puglisi
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 24th day
of January, two thousand twelve.
Present:
ROBERT A. KATZMANN,
GERARD E. LYNCH,
Circuit Judges,
LEWIS A. KAPLAN,
District Judge.*
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 10-2586-cr
JOHN PUGLISI,
Defendant-Appellant.
________________________________________________
For Appellee: JOSEPH PALMER, Appellate Attorney (Lanny A. Breuer,
Assistant Attorney General, Greg D. Andres, Acting Deputy
Assistant Attorney General, on the brief), Unites States
Department of Justice, Criminal Division, Washington D.C.;
Brenda K. Sannes (Miroslav Lovric, on the brief), Assistant
United States Attorneys, for Richard S. Hartunian, United
States Attorney for the Northern District of New York,
Syracuse, N.Y.
*
The Honorable J. Lewis A. Kaplan, of the United States District Court for the Southern
District of New York, sitting by designation.
For Defendant-Appellant: BRUCE R. BRYAN, Syracuse, N.Y.
Appeal from the United States District Court for the Northern District of New York
(McAvoy, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Defendant-appellant John Puglisi appeals from the district court’s June 24, 2010
judgment of conviction and sentence. Puglisi was found guilty, after a jury trial, of (1) attempted
production and production of child pornography, in violation of 18 U.S.C. § 2251(a) (Count
One); (2) persuading, inducing, and enticing a minor to engage in sexual conduct, in violation of
18 U.S.C. § 2422(b) (Count Two); and (3) attempted possession and possession of child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count Three). He was sentenced to
180 months’ imprisonment, to be followed by a life term of supervised release. On appeal,
Puglisi argues (1) that there was insufficient evidence to support his convictions; and (2) that the
mandatory minimum sentence as applied to his case constitutes cruel and unusual punishment in
violation of the Eighth Amendment. We assume the parties’ familiarity with the underlying facts
and procedural history of this case.
Puglisi first argues that the evidence presented at trial was insufficient to support his
convictions. To succeed on a claim of insufficient evidence, the defendant must carry the “very
heavy burden” of showing that “no rational trier of fact, viewing the evidence in the light most
favorable to the government, could have found him guilty beyond a reasonable doubt of the
essential elements of the crimes charged.” United States v. Desena, 287 F.3d 170, 176-77 (2d
Cir. 2002). “While we review de novo the denial of a Rule 29 sufficiency challenge, we apply
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the same deferential standard as the district court in assessing the trial evidence, i.e., we view
that evidence in the light most favorable to the government, assuming that the jury resolved all
questions of witness credibility and competing inferences in favor of the prosecution.” United
States v. Abu-Jihaad, 630 F.3d 102, 134 (2d Cir. 2010) (internal citations omitted).
Following our de novo review of the record, we conclude that Puglisi has failed to satisfy
his heavy burden. To convict Puglisi of attempted production and production of child
pornography under 18 U.S.C. § 2251(a), the government was required to prove that “(1) the
victim was less than 18 years old; (2) the defendant used, employed, persuaded, induced,
enticed, or coerced the minor to take part in sexually explicit conduct for the purpose of
producing a visual depiction of that conduct; and (3) the visual depiction was produced using
materials that had been transported in interstate or foreign commerce.” United States v.
Broxmeyer, 616 F.3d 120, 124 (2d Cir. 2010) (internal quotation marks omitted). Additionally,
because 18 U.S.C. § 2251(a) also prohibits the attempted production of child pornography, see
18 U.S.C. § 2251(e); United States v. Lee, 603 F.3d 904, 913 (11th Cir. 2010), the government
sustained its burden if the evidence was sufficient to prove that Puglisi attempted to produce
child pornography. Puglisi does not contest the sufficiency of the proof on the first and third
elements: the victim was sixteen years old at all relevant times, and the cell phones she used
were made in foreign countries. He does, however, argue that the government’s proof with
respect to the second element of the crime was insufficient to sustain his conviction.
We disagree. Congress has defined the term “sexually explicit conduct” as “actual or
simulated” “(i) sexual intercourse . . . ; (ii) bestiality; (iii) masturbation; (iv) sadistic or
masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person.” 18
U.S.C. § 2256(2)(A). In this case, Puglisi’s explicit text messages amply support the jury’s
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verdict that Puglisi persuaded or attempted to persuade the victim to engage in both
“masturbation” and “lascivious exhibition of the genitals” for the purpose of producing
photographs of that conduct. For example, Puglisi asked the victim to send him a picture of
herself meeting the following description: “[s]weater no bra and touch yourself.” App. 77
(emphasis added). A reasonable jury could readily infer that Puglisi’s request referred to
masturbation, particularly in light of other texts sent by Puglisi to the victim within minutes of
that request where the same phrase unmistakably carried that connotation. Similarly, although
the actual images produced by the victim were unavailable, the text messages exchanged
between Puglisi and the victim show that, at the very least, Puglisi attempted to persuade the
victim to engage in “lascivious exhibition of the genitals or pubic area.” See, e.g., id. at 68
(requesting “[n]aked photos”); id. at 69 (asking victim to send photographs of “whatever I want
to see”); id. at 75 (asking victim to remove more clothing). Moreover, contrary to Puglisi’s
assertions, the lengthy series of text message introduced during the trial amply support the
determination Puglisi “persuaded,” “induced,” or “enticed” the victim to take part in sexually
explicit conduct for the purpose of producing a visual depiction of that conduct, and demonstrate
that Puglisi “had the intent to commit the crime and engaged in conduct amounting to a
‘substantial step’ towards the commission of the crime.” United States v. Brand, 467 F.3d 179,
202 (2d Cir. 2006) (quoting United States v. Yousef, 327 F.3d 56, 134 (2d Cir. 2003)).
Accordingly, Puglisi has failed to show that “no rational trier of fact, viewing the
evidence in the light most favorable to the government, could have found him guilty beyond a
reasonable doubt of the essential elements of” attempted production and production of child
pornography. Desena, 287 F.3d at 176. Additionally, because Puglisi concedes that his
challenge to his conviction for possession of child pornography (Count One) must succeed or fail
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along with his challenge to his conviction for production of child pornography (Count Three),
both of these challenges must fail.
Puglisi also argues that insufficient evidence supported his conviction for persuading,
inducing, and enticing a minor to engage in sexual conduct, in violation of 18 U.S.C. § 2422(b).
This argument is without merit. In his text messages, Puglisi repeatedly attempted to persuade
the victim to engage in sexual conduct. He described, in graphic detail, the sex acts Puglisi and
the victim would perform on each other, and he promised they would “act it out thousands of
times.” App. 81. There was also substantial evidence to support the conclusion that Puglisi
provided the victim various material enticements, including money, phones, clothes, gifts, rides,
and lunches, in exchange for sex. See, e.g., id. at 88 (victim telling Puglisi “[y]ou get sex” in
response to Puglisi’s question why she did not give him “prizes”); id. at 92 (Puglisi proposing
agreement in which he would pay the victim for losing weight, and she would give him oral sex
when he lost weight); id. at 73 (after Puglisi told victim “you are too good to me,” victim replied
“No your too good to me. You buy me lots of things ha.”). Although Puglisi relies on the
victim’s testimony that she did not consider herself a victim, the jury was not required to credit
her testimony in this regard. See United States v. Josephberg, 562 F.3d 478, 487 (2d Cir. 2009)
(“[T]he jury is free to believe part and disbelieve part of any witness’s testimony.”).
Having concluded that Puglisi has failed to show that there was insufficient evidence to
support his convictions, we turn to Puglisi’s contention that the mandatory minimum sentence as
applied to his case constitutes cruel and unusual punishment in violation of the Eighth
Amendment. We review de novo whether a sentence violates the Eighth Amendment. United
States v. Meiners, 485 F.3d 1211, 1212 (9th Cir. 2007). “The Eighth Amendment ‘forbids only
extreme sentences that are ‘grossly disproportionate’ to the crime.’” United States v. Yousef, 327
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F.3d 56, 163 (2d Cir. 2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)
(Kennedy, J., concurring in part and concurring in the judgment)). “[O]utside the context of
capital punishment, successful challenges to the proportionality of particular sentences have been
exceedingly rare.” Ewing v. California, 538 U.S. 11, 21 (2003) (internal quotation marks
omitted) (rejecting Eighth Amendment challenge to 25-year sentence for theft of golf clubs
worth $1,200); see also Harmelin, 501 U.S. 957 (upholding a sentence of life without parole for
possessing a large quantity of cocaine); Hutto v. Davis, 454 U.S. 370, 370, 375 (1982) (per
curiam) (rejecting Eighth Amendment challenge to a sentence of 40 years’ imprisonment for
possession of marijuana with intent to distribute and distribution of marijuana); Rummel v.
Estelle, 445 U.S. 263, 265, 285 (1980) (upholding a sentence of life with the possibility of parole
for a defendant’s third nonviolent felony, the crime of obtaining money by false pretenses). In
considering an Eighth Amendment challenge to the length of a sentence for a term of years, we
conduct the following analysis:
A court must begin by comparing the gravity of the offense and the severity of the
sentence. In the rare case in which this threshold comparison leads to an inference of
gross disproportionality the court should then compare the defendant’s sentence with the
sentences received by other offenders in the same jurisdiction and with the sentences
imposed for the same crime in other jurisdictions. If this comparative analysis validates
an initial judgment that the sentence is grossly disproportionate, the sentence is cruel and
unusual.
Graham v. Florida, 130 S. Ct. 2011, 2021 (2010) (internal citations, quotations marks, and
alterations omitted).
In this case, Puglisi’s conviction for violating 18 U.S.C. § 2251 carries a statutory
minimum sentence of 15 years’ (180 months’) imprisonment. See 18 U.S.C. § 2251(e) (“Any
individual who violates, or attempts or conspires to violate, this section shall be fined under this
title and imprisoned not less than 15 years . . . .”). Before the district court, Puglisi argued that
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the application of the mandatory minimum sentence to his particular case constituted cruel and
unusual punishment because, inter alia, he was not a pedophile, he was far less culpable than the
typical child pornography defendant, he had no criminal history and had led an exemplary life,
he never distributed or intended to distribute the pictures, and the victim was close to the age of
consent. The district court, after calculating Puglisi’s Sentencing Guidelines range as 235 to 293
months, generally agreed with Puglisi’s account of the mitigating factors. App. 220-22. On the
other hand, it recognized that “a teacher is held to [a] lot higher standard,” and found that
Puglisi’s relationship with the victim “was driven by her respect for [Puglisi] as a teacher and
unfortunately [Puglisi] betrayed that respect.” Id. at 223. On the whole, while the district court
expressed its view that a sentence of eight or nine years would be “sufficient and not more than
necessary” to comply with the purposes set forth in 18 U.S.C. § 3553(a), it concluded it was
bound by the dictates of Congress and rejected Puglisi’s Eighth Amendment challenge. Id. at
225-26. Accordingly, the district court sentenced Puglisi to “180 months on counts 1 and 2 and
120 months on count 3, all to run concurrent.” Id. at 227.
We agree with the district court. This Court and others have regularly rejected Eighth
Amendment challenges to child pornography sentences. See United States v. Rivera, 546 F.3d
245, 255 (2d Cir. 2008) (no “inference of gross disproportionality” arose from mandatory life
sentence for recidivist offender for production of child pornography) (internal quotation marks
omitted); United States v. Hughes, 632 F.3d 956, 959-60 (6th Cir. 2011) (upholding ten-year
mandatory minimum under 18 U.S.C. § 2422(b) for attempting in online chats to entice an
undercover officer he thought was fourteen to engage in sexual activity); United States v. Farley,
607 F.3d 1294, 1336-45 (11th Cir. 2010) (upholding thirty-year mandatory minimum under 18
U.S.C. § 2241(c) for crossing state line with intent to have sex with a child); United States v.
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Nagel, 559 F.3d 756, 762-65 (7th Cir. 2009) (upholding mandatory ten-year minimum under 18
U.S.C. § 2422(b) for attempted sexual enticement of an undercover officer he thought was
fourteen); United States v. Paton, 535 F.3d 829, 837-38 (8th Cir. 2008) (upholding life sentence
under 18 U.S.C. § 2251(e) for five counts of production of child pornography by a recidivist
offender); United States v. MacEwan, 445 F.3d 237, 249 (3d Cir. 2006) (upholding fifteen-year
mandatory minimum sentence for receiving child pornography by a repeat offender). While we
agree that compelling mitigating factors exist in this case, there are also aggravating factors:
Puglisi abused his position as a teacher to maintain a sexual relationship with a teenage student,
and obstructed the authorities’ attempts to obtain the photographic evidence of his crimes.
Moreover, the mitigating factors in this case do not render the sentence imposed “grossly
disproportionate” to the serious crimes Puglisi committed. Having concluded that a comparison
of the gravity of the offense and the severity of the sentence does not lead to an inference of
gross disproportionality, we need not reach Puglisi’s comparative arguments. See Graham, 130
S. Ct. at 2021.
We have considered defendant’s remaining arguments and find them to be without merit.
For the reasons stated herein, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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