United States v. Craig Finley

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______

No. 12-2524
______

UNITED STATES OF AMERICA

v.

CRAIG ALAN FINLEY,

Appellant
______

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 1-11-cr-00004-001)
District Judge: Honorable Maurice B. Cohill, Jr.
______

Argued May 14, 2013
Before: SMITH, FISHER and CHAGARES, Circuit Judges.

(Filed: August 12, 2013)
Karen S. Gerlach, Esq. (ARGUED)
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Counsel for Appellant

David J. Hickton, Esq. (ARGUED)
Robert L. Eberhardt, Esq.
Rebecca R. Haywood, Esq.
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219

Christian A. Trabold, Esq.
Office of United States Attorney
17 South Park Row, Room A330
Erie, PA 16501
Counsel for Appellee
______

OPINION OF THE COURT
______

FISHER, Circuit Judge.

Craig Alan Finley was convicted in the U.S. District
Court for the Western District of Pennsylvania of production,
receipt, distribution, and possession of material depicting the
sexual exploitation of a minor. Finley appeals from the
District Court’s judgment of conviction and sentence of 50

2
years’ imprisonment followed by a life term of supervised
release. For the following reasons, we will affirm.

I.

A.

The events leading to Finley’s indictment and
conviction began in 2010 when FBI Agents Marc Botello of
Los Angeles, California and Barry Couch of Rochester, New
York commenced independent undercover investigations
using GigaTribe, a peer-to-peer online file-sharing program.
The agents performed “takeovers” of third party accounts,
which allowed them to share files and engage in chats with
other users. A user with the screen name Boys4me2010
allowed the agents to access his files, including a number of
videos and images that contained child pornography. On one
occasion, after Boys4me2010 implied that he was sexually
involved with a child, Agent Couch asked for the child’s
name, and Boys4me2010 gave it. Agent Couch then
identified one of Boys4me2010’s folders that was titled with
the child’s name and contained images of a young boy.
Thereafter, the agents independently identified
Boys4me2010’s Internet Protocol (“IP”) address, traced the
IP address to its provider, Armstrong Cable Services, in
Butler, Pennsylvania, and subpoenaed the company for
information pertaining to the owner of the IP address.
Armstrong responded in each instance that the IP address
belonged to Craig Finley of Titusville, Pennsylvania.

Agent Michael Shaffer of the Erie, Pennsylvania FBI
office became involved in the investigation after receiving

3
leads from Agents Botello and Couch. On December 23,
2010, Agent Shaffer executed a search warrant for Finley’s
apartment, and although he found no one inside, he did find a
running computer. In order to wake the computer, Agent
Shaffer moved its mouse, which allowed him to identify a
GigaTribe account with the screen name Boys4me2010. He
saw images that Boys4me2010 was sharing, including an
image of the torso of a boy who was sitting on a green couch.
Agent Shaffer saw the same couch in Finley’s apartment.

Pennsylvania State Police Corporal Robert Pearson, a
federally deputized law enforcement officer who is an expert
in computer forensics, conducted examinations of two
computers that were seized from Finley’s apartment. The
computers contained Finley’s resume, a link to Finley’s
Facebook page, and a GigaTribe account for Boys4me2010,
along with explicit examples of sharing, distributing, and
receiving child pornography. Corporal Pearson estimated that
Boys4me2010 had engaged in conversations about sharing,
distributing, and receiving child pornography with hundreds
of GigaTribe users. He also estimated that there were
approximately 30,000 videos and images of child
pornography on the two computers.

B.

On July 12, 2011, a grand jury indicted Finley on a
four-count superseding indictment: Count One, production of
material depicting the sexual exploitation of a minor in
violation of 18 U.S.C. § 2251(a), (e); Count Two, receipt of
material depicting the sexual exploitation of a minor in
violation of 18 U.S.C. § 2252(a)(2), (b)(1); Count Three,

4
distribution of material depicting the sexual exploitation of a
minor in violation of 18 U.S.C. § 2252(a)(2), (b)(1); and
Count Four, possession of material depicting the sexual
exploitation of a minor in violation of 18 U.S.C.
§ 2252(a)(4)(B), (b)(2).

Finley pled not guilty and went to trial. Before the
jury was selected, defense counsel offered to stipulate that the
videos and images obtained from the computers in Finley’s
apartment were in fact child pornography (i.e., material
depicting the sexual exploitation of a minor) on the condition
that the government would not show the videos and images to
the jury. The government refused on the basis “that a
Defendant cannot stipulate away the Government’s
evidence,” and the District Court ruled that the government
was not required to accept the offer. App. at 62-63.

The District Court informed the potential jurors that
they might be shown graphic images of child pornography:

“There will likely be explicit language and
photographs in this case which will depict
children involved in sexually explicit activities.
I will tell you, give you a couple of examples.
You will likely see pictures and movies of
young boys performing oral sex on adult males
or other young boys. You will also likely see
pictures and movies of adult men performing
anal sex on young boys. You will also likely
see pictures and movies of young boys
engaging in anal sex.

5
 The question is, I understand that it may be
difficult for you to hear such language or view
these pictures; however, due to the nature of the
case some exposure to this material will be
necessary. It is important that you be able to set
aside any personal feelings you may have about
the material that you see and fairly consider the
evidence to consider whether this Defendant is
guilty of any of the charges.

Will the mere subject matter of this case affect
your ability – the ability of any of you to listen
and later fairly discuss the evidence with other
jurors and act as a fair and impartial juror?”

Id. at 115-16. One juror was excused following this question.

Despite the District Court’s ruling that the government
was not required to accept defense counsel’s offer to stipulate
to the content of the videos and images, defense counsel made
the following remarks in his opening statement:

“I will tell you right now the images that are
being distributed and received through the
GigaTribe program on these computers, they’re
images of child pornography. They are minors
engaged in sexually explicit conduct . . . .

So if the prosecutor chooses to still show them
to you, even though we are not disputing that
fact, he has the right to show them if he
chooses, but I am telling you we’re not

6
 disputing it. I will stand up in my closing
argument and tell you that the images are
images of minors engaging in sexually explicit
conduct. If they still choose to show the images
to you, they’re doing it in the hopes that you
will be so horrified you will stop thinking and
you will be so horrified you will want to convict
somebody because you will be so angry at what
you see. Then the person they’re going to
parade in front of you is Craig [Finley].”

Id. at 199-200.

Before Agent Botello testified, defense counsel
objected to four videos that the government intended to show
to the jury. Specifically, defense counsel argued that their
admission was unfairly prejudicial under Rule 403 of the
Federal Rules of Evidence. The District Court, after viewing
the content of the videos, allowed their admission, stating:

“Well, I am not going to try to describe them
other than to say in each case there are
individuals on the screen committing oral
sodomy, and I think it’s part of this prosecution
so I am going to let them in.”

Id. at 207. Defense counsel then stated that the District Court
still had to balance the probative value and prejudicial effect
of the videos under Rule 403. The District Court responded:
“Right. And I think that the probative value outweighs the
possible prejudice.” Id. The four videos were then shown to
the jury. Id. at 260-62; Gov’t Exs. 1A, 1B, 1C, and 1D.

7
 Again, before Agent Couch testified, defense counsel
objected to nine videos and two images that the government
intended to show to the jury. The District Court, after
viewing the videos and the images, allowed their admission,
stating:

“I don’t think it is necessary for me to put on
the record what I think I have just seen. The
pictures will speak for themselves. But I
understand where [defense counsel] is coming
from and I would simply say that they are I
think relevant to the entire prosecution here and
on balance the possible prejudice is outweighed
by the probative value.”

Id. at 277. The nine videos and two images were then shown
to the jury. Id. at 326-32; Gov’t Exs. 4B, 4C, 4D, 4E, 4F, 4G,
4H, 4I, 4J, 4K (image), 4L (image).

Finally, during the testimony of Corporal Pearson,
defense counsel renewed his objection to the showing of more
child pornography. He argued that the jury had reached a
“saturation point.” App. at 479. The District Court stated
that the “[r]uling is the same.” Id. At one point thereafter,
the government acknowledged that at least several members
of the jury “were visibly and openly crying” after seeing
“[p]ictures of six-, seven-, eight-year-old boys being anally
raped and crying while it occurs.” Id. at 867.

During the charge conference, defense counsel, with
regard to Count One, objected to the government’s proposed
jury instruction that “[e]ven a sleeping child can engage in

8
sexually explicit conduct when, for example, another person
uses the child to create sexually explicit conduct.” Id. at 542-
43. The District Court allowed the instruction, but stated, “I
think I am going to modify it and say: Even a sleeping child
can be said to have engaged.” Id. at 543. After the
government rested its case, defense counsel made a motion
for judgment of acquittal on Count One under Rule 29 of the
Federal Rules of Criminal Procedure and argued that as a
matter of law a sleeping child cannot “engage in” sexually
explicit conduct. The government’s evidence with regard to
Count One showed that the child at issue was asleep at the
time of the events in question. The District Court denied the
motion, stating:

“Well, I think we discussed that briefly in
chambers on the record, but I think under all the
circumstances while they are not explicitly
engaged in what we might think of as the
common terminology, I think here what they’re
talking about is there was explicit contact with
him; and even though he didn’t participate,
because he was asleep, I think under the legal
definition he did engage in sexual activity . . . .
So we will deny the motion.”

Id. at 676. The District Court, in its charge to the jury, stated:

“Even a sleeping child can be said to have been
engaged in sexually explicit conduct when, for
example, another person uses the child to create
the sexually explicit conduct.”

9
Id. at 790. After the District Court charged the jury, defense
counsel renewed his objection, and the District Court declined
to change its position. On January 26, 2012, the jury returned
a verdict of guilty on all four counts.

The counts on which Finley was convicted came with
statutory maximums: 30 years for Count One; 20 years for
Count Two; 20 years for Count Three; and 10 years for Count
Four. According to the Probation Office’s Presentence
Report (“PSR”), no sentence could be imposed at Count Four
because it was a lesser included offense of Count Two. Also,
the PSR noted that, based on Finley’s total offense level and
criminal history, the advisory Sentencing Guidelines called
for life imprisonment. Because the sentence on the count
carrying the highest statutory maximum (i.e., Count One at 30
years) was less than life imprisonment, the PSR advised that
the sentence imposed on one or more of the other counts
“shall run consecutively, but only to the extent necessary to
produce a combined sentence equal to the total punishment.”
PSR ¶ 63 (citing U.S.S.G § 5G1.2(d)).

Finley objected to the PSR by arguing that the
violations under Counts Two and Three for receipt and
distribution of material depicting the sexual exploitation of a
minor were violations of the same statutory provision, 18
U.S.C. § 2252(a)(2), and constituted alternative ways of
proving the same offense. Finley thus asserted that
consecutive punishments on these counts would violate the
Double Jeopardy Clause of the Fifth Amendment. From this,
Finley contended that his statutory maximum was 50 years,
but that a sentence of 30 years would be sufficient. The
government disagreed and argued that Finley’s statutory

10
maximum should be 70 years, as a result of running the
sentences at Counts One, Two, and Three consecutively. The
government then asked for the maximum sentence. The
District Court addressed Finley’s objection and concluded
that separate punishments would not violate the Double
Jeopardy Clause in Finley’s case. The District Court
explained:

“[T]he evidence established that the Defendant
at a minimum distributed the images he
produced in Count One separate and apart from
images he received in Count Two. The
evidence at trial also established that the
Defendant received images that he did not
possess and distributed different images that he
already possessed. We agree with the
government that the nature of the peer to peer
network and this particular Defendant’s conduct
in trading images establishes that the charges of
receipt and distribution are not identical.”

App. at 11. The District Court thus agreed with the
government that the statutory maximum was 70 years. At the
May 8, 2012 sentencing hearing, the District Court sentenced
Finley to a 30-year term of imprisonment at Count One, to be
served consecutively with a 20-year term of imprisonment at
Count Two. The District Court also imposed a 20-year term
of imprisonment at Count Three to be served concurrently
with the terms of imprisonment at Counts One and Two. The
District Court did not impose a term of imprisonment at
Count Four. This resulted in a total term of imprisonment of

11
50 years, plus a life term of supervised release. Finley then
filed a timely notice of appeal.

II.

The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction over this appeal under 28
U.S.C. § 1291.

III.

A.

Finley contends that the District Court committed
procedural and substantive errors at trial with respect to Rule
403, which provides that “[t]he court may exclude relevant
evidence if its probative value is substantially outweighed by
a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”
A district court is generally afforded broad discretion on
evidentiary rulings due to its “familiarity with the details of
the case and its greater experience in evidentiary matters.”
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384
(2008). “This is particularly true with respect to Rule 403
since it requires an on-the-spot balancing of probative value
and prejudice, potentially to exclude as unduly prejudicial
some evidence that already has been found to be factually
relevant.” Id. (internal quotation marks and citation omitted).
Under this deferential standard, if it is clear that the district
court did in fact conduct a Rule 403 analysis, then we will

12
uphold the ruling “unless the district court has abused its
discretion.” See id.

1.

Finley asserts that the District Court committed a
procedural error by not balancing the Rule 403 factors on the
record, and that as a result, we must remand. We have
previously stated that “[w]hen a court engages in a Rule 403
balancing and articulates on the record a rational explanation,
we will rarely disturb its ruling. Where, however, the court
fail[s] to perform this analysis, or where its rationale is not
apparent from the record, there is no way to review its
discretion.” United States v. Sampson, 980 F.2d 883, 889 (3d
Cir. 1992) (internal citation omitted); see also Gov’t of the
V.I. v. Pinney, 967 F.2d 912, 917-18 (3d Cir. 1992). In
Sampson and Pinney, we found procedural errors where
district courts failed to mention anything about probative
value or prejudice surrounding particular evidence. Sampson,
980 F.2d at 889; Pinney, 967 F.2d at 917-18. Thus, in these
cases, we were unable to conclude that the district court
actually conducted a Rule 403 analysis.

Here, after viewing the first four videos that the
government sought to admit, the District Court acknowledged
that there were “individuals on the screen committing oral
sodomy,” and further stated that “I think it’s part of this
prosecution so I am going to let them in.” App. at 207. After
defense counsel objected that the court was required to
balance the probative value and prejudicial effect of the
videos, the District Court stated, “Right. And I think that the
probative value outweighs the possible prejudice.” Id. And,

13
after viewing another round of videos and considering
another objection from defense counsel, the District Court
stated, “I understand where [defense counsel] is coming from
and I would simply say that they are I think relevant to the
entire prosecution here and on balance the possible prejudice
is outweighed by the probative value.” Id. at 277. Although
a more detailed explanation from the District Court would
have been helpful, we hold that the District Court’s
statements were sufficient to satisfy the procedural
requirements of Rule 403. Unlike in Sampson and Pinney,
we are able to see that the District Court conducted a Rule
403 analysis, in which it simply concluded that probative
value was not substantially outweighed by unfair prejudice.

2.

Finley also puts forth two rationales as to why the
District Court committed a substantive violation of Rule 403.
Because defense counsel offered to stipulate to the fact that
the videos and images contained child pornography, Finley
asserts that the videos and images were of no probative value,
and thus, should not have been admitted. In the alternative,
Finley asserts that the District Court erred in declining to
exclude the very worst of the videos and images, and that its
decision to admit the videos and images conflicts with this
Court’s precedent in United States v. Cunningham, 694 F.3d
372 (3d Cir. 2012).

With respect to the offered stipulation, the government
is entitled to prove its case free from a defendant’s preference
to stipulate the evidence away. Old Chief v. United States,
519 U.S. 172, 189 (1997). As the Supreme Court remarked in

14
Old Chief, “[a] syllogism is not a story, and a naked
proposition in a courtroom may be no match for the robust
evidence that would be used to prove it.” Id. The
government is thus entitled to put forward the relevant
evidence that it chooses. Cunningham, 694 F.3d at 388.
However, that evidence remains subject to Rule 403, id., and
the existence of a stipulation is a relevant factor in the Rule
403 balancing process. Id. at 386 n.23.

The government contends that because Finley’s
counsel merely offered to stipulate, and did not actually
stipulate, the government still had to prove that Finley
produced, received, distributed, and possessed material that
met the legal definition of child pornography, and thus the
videos and images were of great probative value. This
contention, however, is without merit. Although we have yet
to explicitly address whether the distinction between an offer
to stipulate and an actual stipulation is pertinent for purposes
of Rule 403, we have implicitly concluded that it is not. See
id. at 391 (“[C]ourts are in near-uniform agreement that the
admission of child pornography images or videos is
appropriate, even where the defendant has stipulated, or
offered to stipulate, that those images or videos contained
child pornography.”) (emphasis added). Furthermore, our
sister courts of appeals have, on numerous occasions, treated
an offer to stipulate the same as an actual stipulation for
purposes of analyzing the admissibility of child pornography
under Rule 403. See, e.g., United States v. Polouizzi, 564
F.3d 142, 149, 153 (2d Cir. 2009); United States v. Schene,
543 F.3d 627, 642-43 (10th Cir. 2008); United States v.
Ganoe, 538 F.3d 1117, 1123-24 (9th Cir. 2008); United States

15
v. Morales-Aldahondo, 524 F.3d 115, 120 (1st Cir. 2008);
United States v. Sewell, 457 F.3d 841, 843-44 (8th Cir. 2006).
Thus, the fact that defense counsel merely offered to stipulate
instead of actually stipulating is of no consequence in this
case.

The government’s stronger contention as to the
probative value of the videos and images is that they were
necessary to show that Finley knowingly received, distributed,
and possessed child pornography. Knowledge was an
element of each of the crimes for which Finley was charged at
Counts Two, Three, and Four. See 18 U.S.C. § 2252(a).
Finley counters that the videos and images were not probative
of a relevant fact because knowledge was never an issue; i.e.,
he never argued that he received, distributed, or possessed
child pornography without knowing the subject matter with
which he was dealing; instead, he argued that he was not the
one responsible because someone else gained access to his
computer. Finley’s counter-argument is misplaced. “[T]he
prosecution’s burden to prove every element of the crime is
not relieved by a defendant’s tactical decision not to contest
an essential element of the offense.” Estelle v. McGuire, 502
U.S. 62, 69 (1991). In Cunningham, for example, the
defendant asserted a similar defense with a similar stipulation,
and before we ultimately determined that the District Court
had committed a procedural error by not viewing the videos
beforehand, we stated that “[e]ven with the parties’
stipulation, we recognize that showing the video excerpts here
had some probative value because they had a tendency to
show that the offender knew the videos contain[ed] child
pornography.” 694 F.3d at 389 (emphasis added); see also

16
Morales-Aldahondo, 524 F.3d at 120 (admitting images even
though the defendant offered to stipulate that the images
contained child pornography and the defendant did not
contest the knowledge element of the crime). Thus, even
with the stipulation, the videos and images were probative of
a material fact.

Finley argues in the alternative that the District Court’s
decision to admit the worst of the videos and images conflicts
with our Cunningham precedent. In Cunningham, a district
court judge permitted videos to be shown to the jury without
first viewing the videos to determine whether the danger of
unfair prejudice substantially outweighed the probative value
of the videos under Rule 403. During Cunningham’s trial, the
government played two separate videos for the jury
containing a total of seven video excerpts. The most
disturbing of the video excerpts depicted bondage and other
sadistic conduct against prepubescent children. 694 F.3d at
381-82, 390-91. The jury convicted Cunningham on all
counts. We concluded that the district court committed a
procedural error by not viewing the videos prior to admitting
them into evidence, and that because of this procedural error,
the district court’s “underlying Rule 403 determination [was]
not entitled to the full range of deference that we would
normally give to it on appeal.” Id. at 388. Consequently, we
conducted our own Rule 403 analysis and held that, with
regard to the most disturbing of the videos shown to the jury,
“the potential prejudice to the defendant substantially
outweighed any probative value that they might have.” Id. at
391. Critically, we clarified that

17
 “we do not hold that the admission here of
video excerpts or other images was per se
improper. Indeed courts are in near-uniform
agreement that the admission of child
pornography images or videos is appropriate,
even where the defendant has stipulated, or
offered to stipulate, that those images or videos
contained child pornography.”

Id.

Finley’s case differs significantly from Cunningham in
at least one way: at Finley’s trial, the District Court viewed
the videos and images prior to admitting them into evidence.
App. at 205-07, 276-77. Thus, unlike in Cunningham, the
District Court’s ruling warrants full abuse-of-discretion
deference. After viewing the first set of videos, the District
Court stated:

“Well, I am not going to try to describe them
other than to say in each case there are
individuals on the screen committing oral
sodomy, and I think it’s part of this prosecution
so I am going to let them in . . . . I think that the
probative value outweighs the possible
prejudice.”

Id. at 207. And, after viewing the second set of videos and
images, the District Court stated:

“I don’t think it is necessary for me to put on
the record what I think I have just seen. The

18
 pictures will speak for themselves. But I
understand where [defense counsel] is coming
from and I would simply say that they are I
think relevant to the entire prosecution here and
on balance the possible prejudice is outweighed
by the probative value.”

Id. at 277.

The District Court did not abuse its discretion in
making such a determination under Rule 403. As analyzed
above, the videos and images were probative of Finley’s
knowledge that he was receiving, distributing, and possessing
child pornography. And, although some of the videos were
extremely disturbing and absolutely prejudicial, their
presentation was not unfairly prejudicial to the point where
unfair prejudice substantially outweighed probative value.

The government showed the jury only thirteen video
segments and two images1 of what was a collection of more
than 30,000 videos and images belonging to Boys4me2010.
In addition, the District Court informed the potential jurors of
the disturbing images they might see, asked the potential
jurors if they could be fair, and even dismissed one potential
juror who had doubts about her ability to be fair on the
subject matter of child pornography. See United States v.
Dodds, 347 F.3d 893, 899 (11th Cir. 2003) (finding

1
It appears that two video segments lasting two
seconds in duration may have been replayed for the jury
during Corporal Pearson’s testimony. See App. 478-81.

19
significant the fact that the trial court had taken pains to limit
the danger of unfair prejudice by cautioning prospective
jurors about the disturbing nature of the images and admitting
only a small proportion of the images that were found in the
defendant’s possession).

In sum, with respect to Rule 403, we see no basis to
disturb the District Court’s judgment of conviction.

B.

With respect to his conviction for producing material
depicting the sexual exploitation of a minor at Count One,
Finley asserts that the District Court erred in instructing the
jury that a sleeping child can “engage in” sexually explicit
conduct within the context of § 2251. Finley’s contention
presents an issue of statutory interpretation. Section 2251(a)
pertains to “[a]ny person who employs, uses, persuades,
induces, entices, or coerces any minor to engage in . . . any
sexually explicit conduct.” (emphasis added).

“The plain meaning of legislation should be
conclusive, except in the rare cases in which the literal
application of a statute will produce a result demonstrably at
odds with the intentions of its drafters. In such cases, the
intention of the drafters, rather than the strict language,
controls.” United States v. Ron Pair Enters., Inc., 489 U.S.
235, 242 (1989); see also Hartford Underwriters Ins. Co. v.
Union Planters Bank, 530 U.S. 1, 6 (2000) (“[W]hen the
statute’s language is plain, the sole function of the courts – at
least where the disposition required by the text is not absurd –
is to enforce it according to its terms.”). In construing a

20
provision’s plain meaning, the definition of a word in
isolation is not necessary controlling. Dolan v. Postal
Service, 546 U.S. 481, 486 (2006). Depending upon context,
“[a] word in a statute may or may not extend to the outer
limits of its definitional possibilities.” Id.

Finley argues that § 2251(a)’s plain language cannot
be interpreted to encompass situations involving sleeping
children. Finley asserts that the statute requires the minor, as
opposed to the perpetrator, to engage in the sexually explicit
conduct. He also cites to multiple online dictionaries that, in
many cases, define “engage,” when used as an intransitive
verb or followed by the word “in,” as requiring active
participation and involvement.2

Finley’s focus on the word “engage” is too narrow.
Section 2251(a) pertains to a person who “employs, uses,
persuades, induces, entices, or coerces any minor to engage
in . . . any sexually explicit conduct.” (emphasis added).
Congress’s utilization of these verbs, especially “uses,”

2
See Appellant’s Br. at 52-53 (citing to online
dictionaries for definitions of “engage” when used as an
intransitive verb or followed by the word “in,” including
www.thefreedictonary.com (“to involve oneself or become
occupied; participate; engage in conversation”) (last visited
July 30, 2013); www.oxforddictionaries.com (“participate or
become involved in: organizations engage in a variety of
activities”) (last visited July 30, 2013); www.oed.com
(“entangle, involve, commit, mix up”) (last visited July 30,
2013)).

21
indicates that active involvement on the part of a minor is not
essential for a conviction under § 2251(a). For example, a
perpetrator can “use” a minor to engage in sexually explicit
conduct without the minor’s conscious or active participation.

Even if the plain language of the statute could be
interpreted to support Finley’s position, the result of such an
interpretation would be absurd and against the obvious policy
of the statute. In the only published opinion addressing this
issue, the U.S. District Court for the Southern District of New
York held that “[a]s a matter both of common sense and
public policy, the statute must be construed to protect all
children, including those who are unaware of what they are
doing or what they are being subjected to, whether because
they are sleeping or under the influence of drugs or alcohol or
simply because of their age.” United States v. Levy, 594 F.
Supp. 2d 427, 443 (S.D.N.Y. 2009).3 It would be absurd to
suppose that Congress intended the statute to protect children
actively involved in sexually explicit conduct, but not protect
children who are passively involved in sexually explicit
conduct while sleeping, when they are considerably more
vulnerable.

3
Two of our sister courts of appeals, without
specifically addressing the issue, have, in published opinions,
affirmed convictions under § 2251(a) where the material in
question involved sleeping children. See United States v.
Vowell, 516 F.3d 503 (6th Cir. 2008); United States v. Wolf,
890 F.2d 241 (10th Cir. 1989).

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 In sum, on the basis of statutory text, public policy,
and persuasive case law, we hold that the District Court did
not err by instructing the jury that a sleeping child can
“engage in” sexually explicit conduct within the context of
§ 2251(a).

C.

Lastly, Finley asserts that the District Court violated
his protection against double jeopardy by separately
considering, for purposes of sentencing, his convictions for
“receiv[ing]” and “distribut[ing]” material depicting the
sexual exploitation of a minor under § 2252(a)(2). The
Double Jeopardy Clause of the Fifth Amendment provides:
“[N]or shall any person be subject for the same offence to be
twice put in jeopardy of life or limb.” This clause, among
other things, “protects against multiple punishments for the
same offense.” Ohio v. Johnson, 467 U.S. 493, 498 (1984).
In order for multiple punishments to constitute a double
jeopardy violation, the multiple charged offenses must be the
same in law and in fact. United States v. Felton, 753 F.2d
276, 278 (3d Cir. 1985).

A determination of whether the multiple charged
offenses are the same in law involves consideration of
whether the statutory provision in question creates multiple
offenses or only one offense that can be proven in alternative
ways. See United States v. Rigas, 605 F.3d 194, 207 (3d Cir.
2010) (en banc). In contrast, a determination as to whether
the two charged offenses are the same in fact involves
consideration of whether the given conduct violated the
statute multiple times or only once. Id. at 212. “The Double

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Jeopardy Clause is not implicated when multiple separate
violations of the same provision are charged in multiple
counts.” United States v. Snyder, 189 F.3d 640, 647 (7th Cir.
1999).

With respect to whether Finley’s convictions for
“receiv[ing]” and “distribut[ing]” material depicting the
sexual exploitation of a minor were the same in law, we must
examine § 2252(a)(2), which provides as follows:

“Any person who knowingly receives, or
distributes, any visual depiction using any
means or facility of interstate or foreign
commerce . . . if the producing of such visual
depiction involves the use of a minor engaging
in sexually explicit conduct; and such visual
depiction is of such conduct . . . shall be
punished.”

A natural reading of § 2252(a)(2) supports Finley’s
position that the provision creates one offense in law that can
be proven in alternative ways. “When Congress crafts a
statute to create distinct offenses, it typically utilizes multiple
subsections or separates clauses with semicolons to
enumerate separate crimes.” Rigas, 605 F.3d at 209. Section
2252(a)(2), however, does not contain multiple subsections or
separate clauses with semicolons to indicate separate crimes
for “receiv[ing]” or “distribut[ing]” visual depictions of
minors engaged in sexually explicit conduct, and thus
§ 2252(a)(2) does not create distinct offenses for
“receiv[ing]” and “distribut[ing]” child pornography.

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 This conclusion, however, does not establish a double
jeopardy violation in this case because Finley’s separate
convictions for “receiv[ing]” and “distribut[ing]” child
pornography are not the same in fact. The evidence presented
at trial shows that this was not a situation in which all of the
child pornography in question was received at a distinct point
in time into a computer network to which others had shared
access – a situation where separate sentences for receipt and
distribution of child pornography under § 2252(a) might raise
a double jeopardy problem. Rather, as acknowledged by the
District Court, “the evidence established that [Finley] at a
minimum distributed the images he produced in Count One
separate and apart from images he received in Count Two.
The evidence at trial also established that [Finley] received
images that he did not possess and distributed different
images that he already possessed.” App. at 11. Thus,
Finley’s charged offenses at Count Two (for receiving
material depicting the sexual exploitation of a minor) and
Count Three (for distributing material depicting the sexual
exploitation of a minor) involved multiple violations of
§ 2252(a)(2) and were not the same in fact.

In sum, Finley’s separate punishments for receiving
and distributing material depicting the sexual exploitation of a
minor did not violate the Double Jeopardy Clause.

IV.

We will affirm the District Court’s judgment of
conviction and sentence of 50 years’ imprisonment followed
by a life term of supervised release.

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