09-3626-cr
U.S. v. Davis
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2010
Heard: August 30, 2010 Decided: November 5, 2010
Docket No. 09-3626-cr
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UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM DAVIS,
Defendant-Appellant.
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Before: NEWMAN and RAGGI, Circuit Judges, and
RAKOFF,* District Judge.
Appeal from the August 18, 2009, judgment of conviction of the
United States District Court for the Southern District of New York
(Richard J. Sullivan, District Judge), sentencing the Defendant to
imprisonment for 120 years primarily for sexual exploitation of a
minor. The Defendant contends that the knowledge of interstate
transmission of a visual depiction of a minor, induced to engage in
explicit sexual conduct, see 18 U.S.C. § 2251(a), must be
contemporaneous with the production of the visual depiction.
Affirmed.
*
Honorable Jed S. Rakoff, of the United States District Court for
the Southern District of New York, sitting by designation.
Royce Russell, Edmin & Russell, LLP, New
York, N.Y., for Defendant-Appellant.
Michael Ferrara, Asst. U.S. Atty., New
York, N.Y. (Preet Bharara, U.S. Atty.,
Aimee Hector, Katherine Polk Failla,
Asst. U.S. Attys., New York, N.Y., on
the brief), for Appellee.
JON O. NEWMAN, Circuit Judge.
The principal issue on this criminal appeal is a narrow but
unsettled issue concerning the temporal aspect of the knowledge
requirement of 18 U.S.C. § 2251(a), which punishes inducing a minor to
engage in sexually explicit conduct for the purpose of producing any
visual depiction of such conduct. The precise issue is whether the
required knowledge (or reason to have such knowledge) that the visual
depiction will be transmitted in interstate commerce or mailed must
exist at the time that the visual depiction is produced or may be
acquired thereafter. This issue arises on an appeal by William Davis
from the August 18, 2009, judgment of the District Court for the
Southern District of New York (Richard J. Sullivan, District Judge)
convicting him, upon a jury’s verdict, of one count of sexual
exploitation of a minor, two counts relating to child pornography, and
one count of being a felon in possession of ammunition. Other issues
concern the lawfulness of a search of a safe in the home of Davis’s
estranged wife and the admission of Davis’s prior conviction for
sodomy.
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We conclude that the knowledge required by section 2251(a) need
not be contemporaneous with the production of the proscribed visual
depiction and that Davis’s other claims lack merit. We therefore
affirm.
Background
Indictment, conviction, and sentence. In a superseding
indictment, Count One charged Davis with possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), Count Two
charged him with being a felon in possession of ammunition, in
violation of 18 U.S.C. § 922(g)(1), Count Three charged him with
sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a),
and Count Four charged him with attempted distribution of child
pornography, in violation of 18 U.S.C. §§ 2252A(a)(1), 2252A(b)(1).
The evidence supporting Count Three established that the minor was
Davis’s four-year-old stepdaughter. After a jury convicted Davis on
all counts, the District Court sentenced him primarily to consecutive
terms of 20 years on Count One, 10 years on Count Two, 50 years on
Count Three, and 40 years on Count Four, for an aggregate sentence of
120 years. The federal sentence was to run consecutively to the
unexpired portion of a state sentence that Davis was then serving.
The relevant facts will be set forth in connection with the
discussion of each issue.
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Discussion
I. Motion to Suppress
Before trial, Davis moved to suppress evidence obtained without
a warrant from a safe that he had left in the home of his estranged
wife, Margaret Scriven. The safe contained several CDs with a large
quantity of pornographic images of children and five nine-millimeter
rounds of ammunition. The Government contended that Davis had
abandoned the safe, and “[i]t is settled that a warrantless seizure of
property that has been abandoned does not violate the Fourth
Amendment.” United States v. Springer, 946 F.2d 1012, 1017 (2d Cir.
1991); see United States v. Lee, 916 F.2d 814, 818 (2d Cir. 1990)
(“When a person voluntarily abandons property, . . . he forfeits any
reasonable expectation of privacy that he might have had in the
property.”).
After hearing testimony from Scriven and a local detective, the
District Court found that Davis had abandoned the safe. This finding
is fully supported by testimony that the District Judge was entitled
to credit. In an affidavit prior to the hearing, Scriven had stated
that in December 2007 she explained to law enforcement officers that
she had “kicked [Davis] out” of her apartment after learning that he
had sexually abused her daughter. She also stated that between April
2006 and July 2006, Davis had returned to her apartment to retrieve
certain of his belongings including his television, computers, and
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electronics and that Davis failed to return calls from her in
September 2006 asking him to retrieve the remainder of his belongings
from her home. With Scriven’s permission, the safe was retrieved and
searched in January 2007.
At the hearing, Scriven testified that Davis came to her
apartment on at least seven occasions to remove his belongings, that
she had given him until June 2006 to remove the remainder of his
things from her home, that she went to South Carolina from August
until September, and that she changed the locks on her apartment
before she left. She further testified that in December 2006, she
mailed Davis a letter stating that she had attempted to contact him
several times since returning from South Carolina in September and
that he had failed to return her calls except to call on December 1,
2006, to complain of having received a subpoena. Scriven stated that
Davis had never told her he wanted to come to the apartment to
retrieve the safe and that she had never prevented Davis from
retrieving his property from her apartment.
The motion to suppress introduction of the contents of the
abandoned safe was properly denied.
II. Motion to Admit Davis’s Prior Convictions
Also prior to trial, the Government moved to have certain of
Davis’s prior convictions admitted into evidence. Specifically, the
Government sought to admit a 1991 conviction for sodomy by forcible
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compulsion, in violation of New York Penal Law 130.50,2 and 2007
convictions for numerous offenses including sexual assault, rape, and
kidnaping. The 1991 conviction involved the sexual assault of Davis’s
daughter, then aged 12, and his niece, then aged 8; the 2007
convictions involved the rape and kidnaping of a 12 year-old girl.
The Court granted the motion in part and denied it in part. With
respect to the 2007 conviction, the Court ruled that “the details of
that offense conduct are so likely to inflame the jury,” and that “its
potential for prejudice, undue prejudice, is very high.” However, the
Court permitted the admission of the 1991 conviction, pursuant to
Federal Rule of Evidence 414, to prove the defendant’s “propensity and
proclivity,” and that, with respect to the balance of relevance and
unfair prejudice required by Federal Rule of Evidence 403,3 the earlier
conviction was “less likely to inflame the jury” and “not unduly
prejudicial.” Once the 1991 conviction was ruled admissible, it was
redacted by stipulation to reflect only the fact of conviction upon a
guilty plea to a sodomy offense involving a child below the age of 14
2
The motion cited section 130.5, but the citation should have been
to section 130.50, as both parties recognize in their briefs. See
Brief for Appellant at 18; Brief for Appellee at 25.
3
Rule 403 provides that relevant evidence “may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice . . . .” Fed R. Evid. 403.
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and not the fact that the child was Davis’s daughter.
Rule 414 provides:
In a criminal case in which the defendant is accused of an
offense of child molestation, evidence of the defendant’s
commission of another offense or offenses is admissible, and
may be considered for its bearing on any matter to which it
is relevant.
Fed. R. Evid. 414(a). As used in this rule, “child” means a person
under the age of 14. Fed. R. Evid. 414(d). This rule is an exception
to the usual proscription against admission of prior crimes “to prove
the character of a person in order to show action in conformity
therewith.” Fed. R. Evid. 404(b). See United States v. Batton, 602
F.3d 1191, 1198 (10th Cir. 1998). Acknowledging that Rule 414 “allows
for the admission of prior convictions or prior acts of child
molestation to prove propensity,” the Appellant contends that
admission of the 1991 conviction violated Rule 403 because of its
prejudicial effect. See Brief for Appellant at 21.
We previously considered the interplay between Rules 414 and 403
in United States v. Larson, 112 F.3d 600, 604-05 (2d Cir. 1997). We
noted that the legislative sponsors of Rule 414 expected that
convictions within its ambit would normally be admitted and that their
prejudicial value would normally not be outweighed by the risk of
prejudice. See id. at 604 (citing legislative history). Although the
1991 conviction in the pending case is 19 years old, the convictions
in Larson were between 16 and 20 years old. There can be no doubt
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that admission of a prior conviction for child molestation carries a
high risk of prejudice for any defendant, especially one charged with
sexual exploitation of a minor. However, as the Seventh Circuit has
observed, such evidence may be “highly prejudicial” but not
necessarily “unfairly prejudicial.” United States v. Sebolt, 460 F.3d
910, 917 (7th Cir. 2006) (emphasis in original); see United States v.
Guardia, 135 F.3d 1326, 1331 (10th Cir. 1998); Larson, 112 F.3d at
604; United States v. Levy, 594 F. Supp. 2d 427, 439 (S.D.N.Y. 2009)
(Chin, J.).
The calibration necessary to distinguish “highly” prejudicial
from “unfairly” prejudicial will often be difficult to determine. In
this case, the District Judge demonstrated his concern for the issue
by excluding the 2007 convictions and encouraging the stipulation that
redacted from the record the explosive fact that the victim of the
1991 conviction was the Defendant’s daughter. Mindful of the
congressional expectations concerning Rule 414, an expectation
normally to be honored unless application of the rule would offend the
Due Process Clause, we cannot say that the District Court’s allowable
discretion in the admission of evidence was exceeded in this case.
III. Jury Instruction Concerning 18 U.S.C. § 2251(a)
The Appellant contends that the District Court erred in
instructing the jury concerning the temporal aspect of the knowledge
requirement of 18 U.S.C. § 2251(a). As relevant to this case, the
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statute, the full text of which is set out in the margin,4 punishes
inducing a minor to engage in sexually explicit conduct for the
purpose of producing any visual depiction of such conduct if a
defendant knows or has reason to know that such visual depiction will
be transported or transmitted using any means or facility of
4
“Any person who employs, uses, persuades, induces, entices, or
coerces any minor to engage in, or who has a minor assist any other
person to engage in, or who transports any minor in or affecting
interstate or foreign commerce, or in any Territory or Possession of
the United States, with the intent that such minor engage in, any
sexually explicit conduct for the purpose of producing any visual
depiction of such conduct or for the purpose of transmitting a live
visual depiction of such conduct, shall be punished as provided under
subsection (e),[1] if such person knows or has reason to know that
such visual depiction will be transported or transmitted using any
means or facility of interstate or foreign commerce or in or affecting
interstate or foreign commerce or mailed, [2] if that visual depiction
was produced or transmitted using materials that have been mailed,
shipped, or transported in or affecting interstate or foreign commerce
by any means, including by computer, or [3] if such visual depiction
has actually been transported or transmitted using any means or
facility of interstate or foreign commerce or in or affecting
interstate or foreign commerce or mailed.” 28 U.S.C. § 2251(a).
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interstate or foreign commerce or mailed. The Appellant’s specific
claim is that the required knowledge of the future interstate
distribution of the visual depiction must be shown to exist at the
time that the depiction is made. The issue concerning the temporal
aspect of the knowledge requirement arose from the jury’s question
during deliberations. The jury asked:
Does Section 2251[(a)] require that the perpetrator knows or has
reason to know that the visual depiction will be transported in
interstate commerce or mailed at the moment the picture is
produced or can that knowledge come about at a later date[?]
The District Judge responded:
I instruct you that the defendant did not have to know or have
reason to know that the visual depiction at issue would be
transported in interstate or foreign commerce or mailed at the
moment that the visual depiction was produced. Rather, it is
sufficient if you find beyond a reasonable doubt that the
defendant knew or had reason to know that the visual depiction at
issue would be transported in interstate or foreign commerce or
mailed at any time prior to January 4, 2007, the date on which
the visual depiction was recovered by law enforcement
authorities.
The jury is to be commended for identifying an issue that had
escaped the attention of trial counsel (no charge language on the
temporal issue was requested by either side) and that apparently has
not been adjudicated in any other court. In resolving the issue, we
note at the outset that the words of the statute do not yield a clear
answer. The statute neither explicitly requires knowledge of future
interstate transmission to exist at the time the visual depiction is
produced nor explicitly contemplates that the knowledge might be
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acquired thereafter. That absence of a precise textual answer to the
jury’s question might suggest that, under the so-called “rule of
lenity,” see United States v. Santos, 553 U.S. 507, 514 (2008), the
issue should be resolved in favor of the defendant. We have been
instructed that “[t]he simple existence of some statutory ambiguity,
however, is not sufficient to warrant application of [the rule of
lenity].” Muscarello v. United States, 524 U.S. 125, 138 (1998).
Two circumstances persuade us to agree that the District Court
correctly declined to read section 2251(a) to require the knowledge
component of the jurisdictional element of the statute to be formed at
the moment the substantive offense conduct occurs. First, we note
that section 2251(a) contains three clauses to indicate how the
jurisdictional element of the statute may be satisfied. The first
clause, pertinent to the pending case, specifies that the defendant
knows or has reason to know that the visual depiction will be
transmitted using a facility of interstate commerce or mailed. The
second clause specifies that the visual depiction was produced or
transmitted using materials that have been mailed or shipped in
interstate commerce. The third clause specifies that the visual
depiction has been transmitted by any facility in interstate commerce
or mailed. Both of these latter two clauses specify events that need
not be contemporaneous with the substantive offense conduct. The
second clause obviously contemplates that the materials used to
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produce the visual depiction were shipped in interstate commerce
before the depiction was made. The third clause obviously
contemplates that the visual depiction will be shipped in interstate
commerce after the depiction is made. Bearing in mind the “‘whole
act’ rule of statutory construction,” see United States v. Kozeny, 541
F.3d 166, 171 (2d Cir. 2008) (other internal quotation marks
omitted)), we think the first clause of the interstate element best
fits with the second and third clauses if a contemporaneous knowledge
element is not read into the statute.
Second, the District Court’s and our interpretation of the
statute implements the congressional purpose to reach those who
produce child pornography and thereafter affect interstate commerce.
In the findings that accompanied the enactment of provisions that
strengthened section 2251 and other statutes concerning child
pornography offenses, Congress expressed its concern with those who
are engaged in the production of child pornography and are likely to
enter the interstate market in child pornography, see Pub. L. No. 109-
248 § 501(1)(D)(i), 109 Stat. 587, 623-24 (July 27, 2006). These
findings subsequently made in amending existing statutes are not
explicitly the sort of [s]ubsequent legislation declaring the intent
of an earlier statute” that would be “entitled to great weight,” Red
Lion Broadcasting Co. v. FCC , 395 U.S. 367, 380-81 (1969), but they
are somewhat more significant than “[t]he less formal types of
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subsequent legislative history [that] provide an extremely hazardous
basis for inferring the meaning of a congressional enactment,”
Consumer Product Safety Commission v. GTE Sylvania, Inc. , 447 U.S.
102, 118 n.13 (1980). Whatever their force, they indicate
congressional interest in broadening the scope of child pornography
statutes.
For these reasons, we agree with the District Court that the
first clause of the jurisdictional element of section 2251(a) does not
require that the knowledge of interstate transmission be
contemporaneous with the substantive offense conduct.
Conclusion
The judgment of the District Court is affirmed.
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