United States Court of Appeals
For the First Circuit
No. 10-1126
UNITED STATES OF AMERICA,
Appellee,
v.
DANIEL POULIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Stahl, Circuit Judges.
David J. Van Dyke, with whom Hornblower Lynch Rabasco & Van
Dyke, P.A. was on brief, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Thomas E.
Delahanty II, United States Attorney, was on brief, for appellee.
January 7, 2011
STAHL, Circuit Judge. Defendant-appellant Daniel Poulin
was convicted after a bench trial for the production of child
pornography in violation of 18 U.S.C. § 2251(a). Poulin challenges
his conviction on two grounds. First, he asserts that § 2251(a) is
unconstitutional as applied to him because his conduct was purely
personal and did not have a substantial effect on interstate
commerce. Second, he argues that the evidence against him was
insufficient to sustain a conviction because the government failed
to show that he "produced" sexually explicit images of a minor
using materials that traveled interstate. We find Poulin's claims
unavailing and affirm.
I. Background
This appeal follows a conviction, and thus we recount the
facts in the light most favorable to the verdict. United States
v. Mercado, 412 F.3d 243, 245 (1st Cir. 2005).
Poulin, a public adjuster, began dating W.R.1 in 1999
after meeting her through a mutual friend. A few months after they
began dating, Poulin moved in with W.R. and six of her children to
W.R.'s house near Howland, Maine. N.R., one of W.R.'s daughters,
was thirteen-years-old at the time. After moving into the house,
Poulin built a private office in the basement where he spent
several hours a day.
1
For privacy purposes, references to Poulin's then-girlfriend
and the two victims involved will be by initial only.
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Within a brief period of time after Poulin moved in with
the family, he began to buy various forms of covert camera
equipment from Terry Dicus, the owner of Spy Shop 2000 located in
Houston, Texas. The equipment included clock radios, each
installed with a pinhole camera and a wireless transmitter;
receivers; unadorned pinhole cameras and their associated
components; cables; power supplies; wireless transmitter systems;
and various recording and monitoring devices. Dicus bought his
inventory from a Louisiana supplier, and he shipped Poulin's
purchases from Texas to Maine.
Over the course of N.R.'s adolescence and without her
knowledge or consent, Poulin surreptitiously videotaped sexually
explicit images of N.R.2 The filming took place in the bathrooms
of the various residences in which Poulin and the family lived.
These residences included the Howland, Maine house; an apartment in
Augusta, Maine where Poulin and N.R. stayed occasionally; a
primitive cabin in Islesford, Maine located next door to the home
of Poulin's mother and where the family spent its summers; and a
2
Although Poulin challenged at the district court the sexually
explicit nature of the footage, he did not raise the issue in his
appellate briefs. Further, although he asserted at oral argument
that not all of the images were sexually explicit, he admitted that
some were, and he offered no argument that the finding below that
there were sexually explicit images was in error. The issue is
waived. See United States v. Pulido, 566 F.3d 52, 60 n.4 (1st Cir.
2009) ("'[E]xcept in extraordinary circumstances, arguments not
raised in a party's initial brief and instead raised for the first
time at oral argument are considered waived.'") (quoting United
States v. Giggey, 551 F.3d 27, 36-37 (1st Cir. 2008)).
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house in Trenton, Maine where the family took up residence after
the Howland home burnt down. As for the Islesford cabin, at some
point after Poulin acquired it, he made significant renovations to
it and installed all of the wiring and plumbing himself. The water
heater for the cabin was kept in a locked bedroom closet off a
bedroom in which Poulin would spend approximately five hours a day.
On October 26, 2006, W.R. found four DVDs on the ground
outside of the Islesford cabin. She played the disks and
discovered that they contained nude images of N.R. W.R. confronted
Poulin about the DVDs and Poulin apologized.
The next day, Poulin gave authorities permission to
search the Islesford cabin and seize evidence. The police
discovered four hidden cameras in the bathroom, equipment which
Dicus identified as being consistent with the pieces that he sold
to Poulin. Wiring from the hidden cameras led to the locked
bedroom closet. A clock radio containing a power adapter for a
camera was discovered in a building behind the cabin, and it too
resembled the clock radios from Dicus and those that Poulin kept in
the bathrooms of the Howland and Trenton homes. Poulin also turned
over a briefcase and black plastic box stowed next door in his
mother's attic. The briefcase and box contained additional DVDs,
a minicassette camcorder and power cables, thirty-two minicassette
tapes, additional pinhole cameras, transmitters, a DVD recorder, a
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VHS recorder, additional cables, a computer hard drive, a video
maker magazine, and empty condom wrappers.
Labels on the equipment and testimony at trial indicated
that the equipment was made internationally. The media equipment
was manufactured by Sony, Fujifilm, Maxwell, Panasonic, and
Verbatim. Witnesses who worked for the companies testified that
none of their products were produced in Maine and that, generally
speaking, their products were manufactured in Asia.
In total, authorities retrieved approximately forty-eight
DVDs. The seized footage took several hundred hours to view, and
ninety-five percent of the images were depictions of N.R. at
different camera angles in various stages of undress. In addition,
two clips showed nude footage of N.R.'s then sixteen-year-old
friend, G.J., apparently recorded when G.J. stayed with the family
for a two-week period. All of the images, which were streamed
video, were spliced together into a playable video clip, and some
of the most explicit pictures were repeated several times and
edited to be viewed in slow motion.
At trial, the government showcased a sample of the
footage. Although there was not an image from each item of media
seized, the investigator testified that he and his team used
certain indicators, such as N.R.'s naval piercing and shoulder
tattoo, to date the images and ensure that the sample depicted N.R.
while she was still a minor. Indeed, several of Poulin's friends
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testified that after the authorities discovered Poulin's stash,
Poulin confessed to them that he had been taping N.R. for several
years, that he was "sick," and that he needed help.
On September 8, 2009, Poulin's bench trial began. At the
close of the government's case in chief, Poulin moved for judgment
of acquittal on two grounds. He argued that § 2251(a) was
unconstitutional as applied to him because his conduct did not
implicate interstate commerce since the images of N.R. were solely
to satisfy Poulin's personal fetish, and they were not intended to
be, nor ever actually, distributed. He also claimed that the
evidence was insufficient to convict him because the government
failed to show that he "produced" sexually explicit images of a
minor using materials that traveled interstate. On September 14,
2009, the trial court denied the motion and convicted Poulin.
Poulin timely appealed.
II. Analysis
A. Constitutional Claim
We review de novo constitutional challenges to a federal
statute. United States v. Rene E., 583 F.3d 8, 11 (1st Cir. 2009).
Section 2251(a) reads in pertinent part:
Any person who employs, uses, persuades,
induces, entices, or coerces any minor to
engage in . . . any sexually explicit conduct
for the purpose of producing any visual
depiction of such conduct . . . shall
be punished as provided under subsection
(e) . . . if that visual depiction was
produced or transmitted using materials that
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have been mailed, shipped, or transported in
or affecting interstate or foreign commerce by
any means . . . .
18 U.S.C. § 2251(a).
Poulin argues that § 2251(a) is unconstitutional as
applied to him because his conduct did not have a substantial
effect on interstate commerce and therefore is outside the class of
activities that Congress may properly regulate. He asserts,
rather, that his conduct was entirely personal and private and
based on a voyeuristic obsession with N.R. The images were never
viewed nor intended to be viewed by anyone other than Poulin, nor
were they disseminated, distributed, or put to any commercial
purpose.
Poulin's claim fails. In United States v. Morales-De
Jesús, 372 F.3d 6 (1st Cir. 2004), this court rejected both a
facial and as-applied challenge to § 2251(a) premised on the
argument that the statute exceeded congressional authority under
the Commerce Clause because it attempted to regulate intrastate
child pornography created exclusively for personal use. We first
held that § 2251(a) was valid on its face in regulating intrastate
child pornography production because such activity, when taken in
the aggregate, had a substantial effect on interstate commerce.
Id. at 14-17 (relying on Wickard v. Filburn, 317 U.S. 111 (1942));
see United States v. Robinson, 137 F.3d 652, 656 (1st Cir. 1998).
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As to the as-applied challenge, we considered whether the
videotaping of two sexual encounters between the defendant and a
thirteen-year-old girl fell outside the class of activities
properly regulated by Congress because the defendant produced the
images solely for his own gratification and did not purchase,
trade, or sell the self-generated pornography, or have any
intention to do so. We found the conduct within Congress' reach
because:
[w]hen Congress regulates a class of
activities that substantially affects
interstate commerce, a defendant's claim that
his personal activities did not affect
interstate commerce fails if his activity is
within that class. When "a general regulatory
statute bears a substantial relation to
commerce, the de minimis character of
individual instances arising under that
statute is of no consequence."
Id. at 17 (quoting United States v. Lopez, 514 U.S. 549, 558
(1995)) (internal quotation marks omitted).
Morales controls the outcome here. Poulin's conduct, the
videotaping of sexually explicit images of N.R. and G.J. as minors,
is part of a class of activities, the production of child
pornography, that has a substantial effect on interstate commerce.
The purely personal nature of his conduct is irrelevant for
purposes of § 2251(a)'s constitutionality.
Poulin futilely attempts to define his conduct at a level
of specificity designed to render it non-economic, characterizing
the images as "nonfungible" due to his singular obsession with N.R.
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The proper query on an as-applied Commerce Clause challenge,
however, relates only to whether the class of activities regulated
is a class within the reach of federal power, and we "refuse to
accord decretory significance" to whether the commodity at issue is
fungible. United States v. Nascimento, 491 F.3d 25, 42 (1st Cir.
2007) (rejecting as-applied challenge to RICO statute even though
the criminal activity at issue was neither economic nor fungible).
When Congress addresses "a problem that is legitimately within its
purview, . . . the court should respect the level of generality at
which Congress chose to act." Id. (citing Gonzales v. Raich, 545
U.S. 1, 22 (2005)).3
To be sure, Morales left open the possibility for future
as-applied Commerce Clause challenges to § 2251(a), particularly if
the circumstances involved did not implicate child exploitation.
Relevant factors may include "the age of the minor, the
relationship between the defendant and the minor, the nature of the
allegedly sexually explicit conduct, and the nature of the visual
depiction of that conduct." 372 F.3d at 18. None of these factors
are relevant for present purposes. Indeed, Poulin does not even
attempt to apply them. Accordingly, because Poulin's conduct falls
within the sphere of activity that Congress legitimately regulates,
we reject his claim.
3
We note also that the footage retrieved is not fully
consistent with Poulin's theory of a singular obsession since it
also depicted naked images of N.R.'s friend, G.J.
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B. Sufficiency of the Evidence Claim
We review de novo Poulin's challenge to the sufficiency
of the evidence underlying his conviction to determine "whether any
rational factfinder could have found that the evidence presented at
trial, together with all reasonable inferences, viewed in the light
most favorable to the government, established each element of the
particular offense beyond a reasonable doubt." United States v.
Medina-Martinez, 396 F.3d 1, 5 (1st Cir. 2005) (quoting United
States v. Richard, 234 F.3d 763, 767 (1st Cir. 2000)). We consider
both direct and circumstantial evidence. United States v.
Stierhoff, 549 F.3d 19, 26 (1st Cir. 2008). The court's only
inquiry is whether the guilty verdict "is supported by a plausible
rendition of the record." United States v. Ortiz, 966 F.2d 707,
711 (1st Cir. 1992).
Poulin argues that the government failed to prove that he
"produced" sexually explicit images of a minor using materials that
traveled in interstate commerce. His argument is two-fold. First,
he claims that the government "failed to present any evidence
establishing at what point in the camera -- recording device --
disk continuum 'production' of any . . . images occurred." His
argument appears to be that "production" occurs only in a recording
device, but the recording devices seized were recovered from his
mother's attic, not from the cabin where the cameras and DVDs were
found. Second, he argues that the evidence was insufficient
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because no particular image was connected to a particular recording
device that traveled in interstate commerce.
As to Poulin's claim that the government's evidence was
insufficient to prove that Poulin "produced" the images, we find it
without merit. To sustain a conviction under § 2251(a), the
government must prove that Poulin produced a visual depiction of a
minor engaged in sexually explicit conduct using materials that had
been mailed, shipped, or transported in interstate or foreign
commerce. 18 U.S.C. § 2251(a). Congress defined the term
"producing" as used in § 2251(a) to mean "producing, directing,
manufacturing, issuing, publishing, or advertising." 18 U.S.C. §
2256(3).
We find that Congress did not intend so technical a
definition of the term "produced" as Poulin would have it. Such a
holding comports with Congress' list of assorted terms defining
"producing," along with our own precedent and that of many of our
sister courts. See, e.g., id.; United States v. Ortiz-Graulau, 526
F.3d 16, 19 (1st Cir. 2008) (interpreting § 2251(a) to require only
that a visual depiction be made); United States v. Fadl, 498 F.3d
862, 867-68 (8th Cir. 2007) (finding Congress intended a
nontechnical definition of "producing" and sought to include
activities not generally considered to fall within the typical
meaning of the term); United States v. Smith, 459 F.3d 1276, 1297-
98 (11th Cir. 2006) (finding "producing" not unduly technical or
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ambiguous); United States v. Angle, 234 F.3d 326, 341 (7th Cir.
2000) (rejecting restrictive definition and holding that images
copied onto computer diskettes are "produced"); Robinson, 137 F.3d
at 653-54 (noting evidence of photographs taken with camera and
film manufactured outside of state was offered to show "production"
using materials shipped in interstate commerce); United States v.
Lacy, 119 F.3d 742, 750 (9th Cir. 1997) (finding images copied onto
computer were created and therefore "produced"). But see United
States v. Wilson, 182 F.3d 737, 741-43 (10th Cir. 1999) (finding
images recorded onto diskettes that traveled interstate
insufficient to satisfy "production" requirement).
Congress intended a broad ban on the production of child
pornography and aimed to prohibit the varied means by which an
individual might actively create it. See 18 U.S.C. § 2256(3);
Fadl, 498 F.3d at 868. As such, the government did not need to
establish at what point "production" occurred, nor produce in
evidence a recording device recovered from the Islesford cabin. A
reasonable factfinder could have found that the substantial
evidence introduced at trial -- pinhole cameras recovered from the
cabin bathroom; wiring from the cameras that led to the bedroom
closet; cables, transmitters, and recording devices that Poulin
secreted in his mother's attic; and DVDs evincing sexually explicit
images of a minor -- proved that Poulin "produced" the images.
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Finally, Poulin admitted to taping N.R. over the course
of several years. Indeed, several witnesses testified at trial
that Poulin confessed to them that he had been "taking pictures
of," "making movies of," and "videotaping" N.R. while she was a
minor. A reasonable factfinder could have credited this testimony
as proving production.
With respect to Poulin's argument that no particular
image was connected to a particular recording device that traveled
in interstate commerce, it too fails. All of the media equipment
and materials seized were manufactured outside of Maine. It was
reasonable for a factfinder to conclude that Poulin used these
materials to produce the sexually explicit images.
III. Conclusion
For the foregoing reasons, we affirm the conviction.
So ordered.
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