United States v. Sharif El-Battouty

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-1674
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UNITED STATES OF AMERICA
v.
SHARIF EL-BATTOUTY,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-18-cr-00352-003)
District Judge: Hon. Harvey Bartle, III
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Submitted Pursuant to Third Circuit L.A.R. 34.1
June 13, 2022
Before: HARDIMAN, SMITH, and FISHER, Circuit Judges
(Filed: June 28, 2022)
Richard Coughlin
Louise Arkel
Office of Federal Public Defender
1002 Broad Street
Newark, NJ 07102
Counsel for Appellant
Richard W. Downing
Kaylynn Foulon
United States Department of Justice
Criminal Division
Room 600
1300 New York Avenue, N.W.
Washington, DC 20005
William M. McSwain
Robert A. Zauzmer
Kevin L. Jayne
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Sharif El-Battouty appeals his judgment of conviction
for engaging in a “child exploitation enterprise” in violation of
18 U.S.C. § 2252A(g). The appeal presents a question of first
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impression regarding the interpretation of Section 2252A(g).
For the reasons that follow, we will affirm.
I
El-Battouty was a leader of a large-scale online child
pornography ring that victimized minors for almost two years.
Using the online alias “Fritos,” El-Battouty posted several
thousand times on two private servers—“Cam Girls” and
“Thot Counselors”—hosted by an internet chat platform called
Discord. App 113. Both servers were organized into text
channels that functioned as chatrooms. They operated as
sophisticated, hierarchical distribution networks for sexually
explicit images and videos of minors. Users also shared
methods to coerce children into producing pornography.
Frequent contributors to the enterprise received greater “rank,”
which bestowed upon them administrative rights and greater
access to child pornography.
As “Fritos,” El-Battouty was prolific on both the Cam
Girls and Thot Counselors servers. He bragged of his “elite”
ability to manipulate minor women into exposing themselves
and performing sex acts. See, e.g., App. 129; Supp. App. 84.
He specialized in producing explicit “gifs”—short, looping
video clips—of minors. He used his fictional online persona to
deceive minors into believing they were playing a “game” of
progressively lewder sex acts with a fellow minor. El-Battouty
surreptitiously recorded and then distributed this content to
other users on the Discord servers.
Once law enforcement became aware of Cam Girls and
Thot Counselors, an undercover FBI agent began to monitor
and preserve content. A search of El-Battouty’s residence
pursuant to a warrant recovered digital devices containing
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thousands of carefully archived sexually explicit images and
videos of minors. The devices, as well El-Battouty’s own
statements, established his access and use of Cam Girls and
Thot Counselors as “Fritos.” A grand jury returned a two-count
superseding indictment against El-Battouty, charging him with
engaging in a child exploitation enterprise in violation of 18
U.S.C. § 2252A(g), and conspiracy to advertise child
pornography in violation of 18 U.S.C. § 2251(d), (e). A jury
convicted El-Battouty on both counts. The child exploitation
enterprise count resulted in a sentence of 30 years’
imprisonment, a life term of supervised release, restitution of
$5,421.45, and a special assessment of $100. On the
Government’s motion, the District Court dismissed the
conspiracy count as a lesser included offense.
El-Battouty filed this timely appeal.
II
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have final order jurisdiction under 28 U.S.C.
§ 1291.
III
As noted, a jury found El-Battouty guilty of engaging in
a child exploitation enterprise under 18 U.S.C. § 2252A(g).
That provision states:
A person engages in a child exploitation
enterprise for the purposes of this section if the
person . . . [commits certain predicate federal
violations involving minor victims] as a part of a
series of felony violations constituting three or
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more separate incidents and involving more than
one victim, and commits those offenses in
concert with three or more other persons.
18 U.S.C. § 2252A(g)(2). Consistent with the statute, the
District Court outlined for the jury the three elements necessary
to convict El-Battouty: (1) that he committed a series of felony
violations constituting three or more separate incidents; (2) that
the three or more incidents together involved more than one
victim in total; and (3) that he committed the offenses in
concert with three or more other persons. On the final element,
the District Court further explained that “[i]t is not necessary
that each individual incident was committed in concert with
three or more other persons. The required total of three other
persons may be tallied by considering all the incidents
together.” App. 652 (emphasis added).
El-Battouty’s proposed jury instructions contended, and
he argues on appeal, that 18 U.S.C. § 2252A(g) is better read
to require each individual predicate offense to be committed in
concert with three or more other persons. The District Court
disagreed, holding that straightforward principles of statutory
construction establish that the “in concert” requirement is “best
read” to refer to the “series” of predicate offenses, rather than
each individually. App. 678. While we have not yet considered
this issue, the Sixth and Ninth Circuits both concluded that the
“in concert with three or more other persons” requirement of
§ 2252A(g) refers to the series of offenses cumulatively, rather
than individually. See United States v. Grovo, 826 F.3d 1207,
1215 (9th Cir. 2016); United States v. Daniels, 653 F.3d 399,
412 (6th Cir. 2011). Exercising plenary review over the
correctness of the District Court’s jury instructions, United
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States v. Friedman, 658 F.3d 342, 352 (3d Cir. 2011), we now
join our sister courts.
The statute specifies that the defendant committed
“those offenses in concert with three or more other persons.”
18 U.S.C. § 2252A(g) (emphasis added). It does not require
that each felony violation be committed by three or more
persons. See id. “‘[T]hose offenses’ . . . refer[s] to the ‘series
of felony violations.’” Daniels, 653 F.3d at 412; see 18 U.S.C.
§ 2252A(g). The only offenses identified previously in the
statute are the series of predicate felony offenses involving
minors. See 18 U.S.C. § 2252A(g). The absence of “each”—or
a functionally equivalent word—immediately before “in
concert with three or more persons” confirms that the “three or
more persons” may be summed by considering the predicate
felony violations together. See id. So the District Court’s
instruction to the jury was consistent with the law as written.
IV
El-Battouty’s other two arguments are without merit.
A
He challenges the District Court’s failure to cure or
strike testimony from a cooperating witness who referred to his
own participation in a “child exploitation enterprise.” El-
Battouty Br. 44–49. El-Battouty claims that the witness’s
repeated references to a “child exploitation enterprise”
prejudiced him by suggesting a legal conclusion to the jury,
thus depriving him of his right to a fair trial. We review the
District Court’s evidentiary rulings for abuse of discretion.
United States v. Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000)
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(citing United States v. Pelullo, 964 F.2d 193, 199 (3d Cir.
1992)). We discern no abuse of discretion in this case.
The cooperating witness testified about his guilty plea,
cooperation agreement, and the conduct on which both were
based: his participation in the same “child exploitation
enterprise” as El-Battouty on the Cam Girls and Thot
Counselor servers. Critically, testimony regarding the
cooperating witness’s guilty plea was not admitted as
substantive evidence of El-Battouty’s guilt. See United States
v. Universal Rehab. Servs. (PA), Inc., 205 F.3d 657, 668 (3d
Cir. 2000) (en banc). The District Court specifically cautioned
the jury that it “must not consider [the cooperating witness’s]
guilty plea as any evidence of [El-Battouty]’s guilt.” App. 641–
42; see Universal Rehab. Servs., 205 F.3d at 668 (explaining
that any prejudicial effect is typically cured by instructing the
jury “that it may not consider the guilty plea and/or plea
agreement as evidence that the defendant is guilty of the
offenses”). Moreover, El-Battouty’s own attorney described
the witness’s offense using the same phrase—“child
exploitation enterprise”—on cross-examination. App. 296.
The Government introduced the cooperating witness’s
testimony for permissible reasons—assisting the jury in
weighing the witness’s credibility, demonstrating that El-
Battouty was not singled out for prosecution, and explaining
how the cooperator had direct knowledge of the charges
against El-Battouty. And the District Court properly cautioned
the jury as to the testimony’s limited use. The Court did not
abuse its discretion.
B
We last consider El-Battouty’s challenge, raised here
for the first time, to the District Court’s jury instructions. He
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claims the description of the number of offenses and incidents
comprising the child exploitation enterprise count was
“confusing” and that the jury should have been required to
indicate the particular offenses on which they agreed. El-
Battouty Br. 34. El-Battouty further argues that the District
Court should have defined “transporting,” “distributing,” and
“in concert with,” in the jury instructions. (“Transporting” and
“distributing” child pornography are among the predicate
felony violations contained in the first element of § 2252A(g);
“in concert with” appears in the third element of § 2252A(g).)
Our review of the record leads us to conclude that the
District Court’s instructions fairly and adequately put the issue
before the jury. The Court detailed the predicate offenses of the
child exploitation enterprise count. “Transporting” and
“distributing” are ordinary terms that the jury could understand
without further detail. The same is true of “in concert with”—
which connotes mutual agreement or a common plan. The
central issue was whether El-Battouty acted alone or conspired
with other users on the Discord servers. The statute presents
common words and phrases, which the District Court
explained to the jury in a straightforward way. El-Battouty did
not identify any problem on this point at trial, and the jury did
not request clarification when given the opportunity to ask
questions. There was no error, much less plain error. See
United States v. Tai, 750 F.3d 309, 313 (3d Cir. 2014).
* * *
For the reasons stated, we will affirm the District
Court’s judgment of conviction.
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