Case: 12-16354 Date Filed: 08/09/2013 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-16354
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cr-00086-KD-N-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM JAMES ATKINSON, III,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(August 9, 2013)
Before CARNES, Chief Judge, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
William Atkinson, III, was convicted after a jury trial of one count of
conspiracy to commit an offense against the United States, in violation of 18
Case: 12-16354 Date Filed: 08/09/2013 Page: 2 of 6
U.S.C. § 371, and one count of obstruction of justice, in violation of 18 U.S.C.
§ 1519. On appeal, he argues that § 1519 is unconstitutionally vague as applied to
his case and that his convictions were not supported by sufficient evidence that he
intended to impede a contemplated investigation. After careful review, we affirm.
I.
We recite the relevant facts in the light most favorable to the jury’s verdict.
See United States v. Haile, 685 F.3d 1211, 1219 (11th Cir. 2012), cert. denied, 133
S. Ct. 1723, 1724 (2013). One of Atkinson’s sons, William, IV (Will), operated an
orphanage in Honduras with his brother Jonathan. While Jonathan was working at
the orphanage, a child told him that Will had sexually abused him. Shortly
thereafter, Jonathan secretly placed a video camera in Will’s office to obtain proof
of the abuse. The camera wirelessly transmitted a video stream to a digital video
recorder (DVR), which contained a hard drive that stored the video.
After obtaining several days of recordings, Jonathan returned to the United
States with the DVR and reviewed the video, which showed Will sexually abusing
a 14-year-old male. Jonathan transported the DVR to the family’s home in Mobile,
Alabama, and showed portions of the recording to his father and two of his
brothers, Matthew and Andrew. Jonathan also made a copy of excerpts of the
video and gave it to his friends Joe and Tracy Lepro.
2
Case: 12-16354 Date Filed: 08/09/2013 Page: 3 of 6
At some point after the Lepros obtained the video, Atkinson directed his son
Matthew to erase the DVR. After doing so, Andrew and another one of Atkinson’s
sons, Joshua, took the DVR outside and repeatedly shot it. Atkinson later directed
Andrew and Jonathan to destroy it, but Joshua informed his father that it was
already taken care of. Meanwhile, Joe and Tracy Lepro gave their copy of the
video to the Mobile County Sheriff’s Office, which alerted the Department of
Homeland Security (DHS) to its existence. DHS assigned Special Agent Angelo
Fermo to investigate both the sexual abuse Will committed in Honduras and
Jonathan’s transportation and possession of child pornography. Special Agent
Fermo questioned Atkinson, who explained that he had ordered his sons to destroy
the DVR because he did not want to see Will or Jonathan go to jail. The jury
convicted Atkinson of conspiracy and obstruction of justice in connection with his
role in the destruction of the video. This is Atkinson’s appeal.
II.
Atkinson first contends that 18 U.S.C. § 1519 is unconstitutionally vague as
applied to his case. We review de novo whether a criminal statute is void for
vagueness as applied to a defendant’s conduct. United States v. Nelson, 712 F.3d
498, 504 (11th Cir. 2013). A criminal statute is unconstitutionally vague when it
“fails to provide a person of ordinary intelligence fair warning, or authorizes
arbitrary and discriminatory enforcement.” United States v. Lebowitz, 676 F.3d
3
Case: 12-16354 Date Filed: 08/09/2013 Page: 4 of 6
1000, 1012 (11th Cir. 2012), cert. denied, 133 S. Ct. 1492 (2013). A challenge for
vagueness will fail, however, where a defendant’s actions “clearly fall within the
intended reach of the . . . statute.” United States v. McGarity, 669 F.3d 1218,
1233-34 (11th Cir.), cert. denied, 133 S. Ct. 374, 378, 381, 459, 551 (2012).
The obstruction-of-justice statute under which Atkinson was convicted
provides:
Whoever knowingly alters, destroys, mutilates, conceals, covers up,
falsifies, or makes a false entry in any record, document, or tangible
object with the intent to impede, obstruct, or influence the
investigation or proper administration of any matter within the
jurisdiction of any department or agency of the United States . . . , or
in relation to or contemplation of any such matter or case, shall be [in
violation of this statute].
18 U.S.C. § 1519. Atkinson argues the statute is unconstitutionally vague as
applied to his conduct, asserting that he did not contemplate a future investigation
within a federal agency’s jurisdiction because the abuse recorded on the DVR
occurred in Honduras. But Atkinson’s subjective beliefs are irrelevant to whether
§ 1519 is unconstitutionally vague. See United States v. Duran, 596 F.3d 1283,
1290 (11th Cir. 2010) (explaining that a criminal statute is void for vagueness
where “one could not reasonably understand that his contemplated conduct is
proscribed” (emphasis added) (internal quotation marks omitted)); see also
Lebowitz, 676 F.3d at 1012 (“A defendant’s ignorance of the law is not a
defense . . . .”). And the trial testimony indicated that Atkinson was concerned that
4
Case: 12-16354 Date Filed: 08/09/2013 Page: 5 of 6
his son Jonathan would be prosecuted for possession and transportation of child
pornography. It is beyond dispute that ordering the erasure of a hard drive
containing child pornography, the very possession of which violates federal law,
falls within the intended reach of § 1519. Atkinson’s vagueness challenge
therefore fails. McGarity, 669 F.3d at 1233-34.
III.
Atkinson next asserts that the district court erred in denying his motion for
judgment of acquittal based on insufficient evidence. We review the district
court’s denial of this motion de novo, viewing the evidence and making all
reasonable inferences and credibility determinations in favor of the jury’s verdict.
Haile, 685 F.3d at 1218-19.
Atkinson contends the jury lacked sufficient evidence to conclude beyond a
reasonable doubt that he intended to impede a contemplated future investigation
when he ordered the DVR’s erasure and destruction. We disagree. Special Agent
Fermo testified at trial that Atkinson told him that he was concerned his son
Jonathan “had possibly brought . . . child pornography . . . into the country” and
that “he didn’t want to see either one of his sons go [to] jail.” Although Atkinson
made these statements after he ordered the destruction of the DVR, the jury could
reasonably interpret them as an explanation of Atkinson’s motive, namely that he
contemplated an investigation into Jonathan’s transportation and possession of
5
Case: 12-16354 Date Filed: 08/09/2013 Page: 6 of 6
child pornography and wanted to interfere with it to prevent his or Will’s
prosecution. Hence, the district court properly denied Atkinson’s motion for
judgment of acquittal.
AFFIRMED.
6