Case: 09-50668 Document: 00511408866 Page: 1 Date Filed: 03/11/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 11, 2011
No. 09-50668 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
SEAN MICHAEL BLOCK,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before JONES, Chief Judge, and DENNIS and CLEMENT, Circuit Judges.
PER CURIAM:
Sean Michael Block appeals his conviction for aiding and abetting Jennifer
Louise Richards in efforts to sell custody of her daughter for purposes of sexual
exploitation and the creation of child pornography in violation of
18 U.S.C. § 2251A(a). Contrary to Block’s arguments, the statutory definition
of “custody or control” encompasses the transaction he and Richards attempted
to complete.
I. Background
Sean Michael Block and Jennifer Louise Richards began a romantic
relationship in January 2008. During the ensuing months, they discovered a
shared interest in a variety of sexual fetishes. At Block’s suggestion, they began
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No. 09-50668
discussing relationships with minor children, a fantasy that led Block to propose
exploitation of Richards’s own daughters. Block proposed both that the couple
themselves engage in sexual acts with Richards’s daughters and that they make
money by selling the girls to other adult men. To that end, he introduced
Richards to William Gholson, a man who frequented the bar at which Block
worked and discussed his interest in younger women. Unknown to Block,
Gholson was an FBI informant. In the course of several conversations, Block
and Richards negotiated a deal with Gholson that would allow him to engage in
and photograph his sexual conduct with Richards’s five-year-old daughter.
Richards insisted on several limitations, including her presence at the initial
interactions and a ban on vaginal penetration. In exchange, Gholson paid
Richards $300 in cash and promised to obtain an apartment and car for her.
The FBI arrested both Block and Richards. Richards pled guilty to selling
or transferring custody of a minor child with knowledge that the child would be
used in the production of child pornography. She also agreed to cooperate with
the government’s case against Block. After a four-day trial, which included
testimony from both Richards and Gholson, a jury convicted Block of aiding and
abetting the crime to which Richards pled guilty and of distributing child
pornography in violation of 18 U.S.C. § 2252A(a)(2). Block moved for judgment
of acquittal at the close of the government’s case and again at the close of all
evidence. The district court denied both motions. Block appeals.
II. Standard of Review
Following a timely motion for judgment of acquittal, this court reviews the
sufficiency of the evidence de novo. United States v. McDowell, 498 F.3d 308,
312 (5th Cir. 2007). We will affirm the jury’s verdict unless no “rational jury,
viewing the evidence in the light most favorable to the prosecution, could have
found the essential elements of the offense to be satisfied beyond a reasonable
doubt.” United States v. Miles, 360 F.3d 472, 467-77 (5th Cir. 2004).
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The government argues that this court should review for a “manifest
miscarriage of justice” because Block’s motion for judgment of acquittal did not
clearly challenge the sufficiency of the evidence. See, e.g., United States v.
McDowell, 498 F.3d 308, 312 (5th Cir. 2007). When a defendant’s motion for
judgment of acquittal ‘asserts specific grounds for a specific element of a specific
count . . . , he waives all others for that specific count.’” United States v. Herrera,
313 F.3d 882, 884 (5th Cir. 2002) (en banc) (emphasis in original). In the present
case, Block’s attorney stated that “the evidence has failed wholly . . . Sean Block
has not been shown to have aided or abetted Jennifer Louise Richards [in
violating § 2251A].” In ruling on the motion, the district court found “that there
are fact questions for a jury determination as to all the different elements of the
offenses charged.” We conclude that the motion was a general challenge to the
sufficiency of the evidence, and the district court’s reference to “all the different
elements” confirms this conclusion. Accordingly, the de novo standard applies.
III. Discussion
Block argues that the evidence concerning the “custody or control” that he
and Richards proposed to give Gholson fails to prove a violation of § 2251A. He
misreads the statute. The statute does not require transfer of full parental
authority; something less than the control a parent exercises—including, as
here, limitations in time and scope—suffices to violate the law.
The statute punishes “[a]ny parent, legal guardian, or other person having
custody or control of a minor who sells or otherwise transfers custody or control
of such minor, or offers to sell or otherwise transfer custody of such minor” with
knowledge that the child will be depicted in child pornography.
18 U.S.C. § 2251A(a). The term “custody or control” is a defined term. It
“includes temporary supervision over or responsibility for a minor whether
legally or illegally obtained.” 18 U.S.C. § 2256(7) (emphasis added).
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Block contends that the repetition of “custody or control” in § 2251A
implies that the “custody or control” that the parent transfers must be
coextensive with the “custody or control” that a parent or guardian exerts over
a child. Because a parent’s control is permanent and unchecked by another
adult, Block argues that a transfer of limited or temporary control does not
violate the law.
Block’s reading does not square with the statutory text and would delete
the definition in § 2256(7). We decline to make statutory provisions meaning-
less: “It is a basic precept of statutory construction that we should . . . not
construe statutes in a way that renders words or clauses superfluous.” Wheeler
v. Pilgrim’s Pride Corp., 591 F.3d 355, 375 (5th Cir. 2009) (en banc). The plain
language of § 2256(7) includes “temporary supervision.” Although this case
presents a matter of first impression in the Fifth Circuit, we are not alone in
enforcing the statute’s internal lexicon. The Eleventh Circuit has concluded that
the “custody or control” in question need not be permanent. United States v.
Frank, 599 F.3d 1221, 1236 (11th Cir. 2010). Moreover, even absent the
definition in § 2256(7), Block’s argument that § 2251A somehow equates
“custody or control” with full parental rights fails. The statute refers to a
“parent, legal guardian, or other person having custody or control.” 18 U.S.C.
§ 2251A(a) (emphasis added). The reference to custody or control describes the
“other person,” not a parent or legal guardian. Inferring on the basis of this
language that “custody or control” necessarily refers to the array of parental
rights is a misreading of the text. Obviously, for example, the proprietor of a day
care center could have “custody or control” under this provision.
On the facts of this case, Richards and Block attempted to transfer custody
or control of Richards’s daughter to Gholson. In one recorded conversation,
Gholson proposed that “maybe some Saturday you’d let me take her to say
Sea World by myself . . . with the knowledge that if, if everything is right that
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I might try to act out a little bit sexually with her as long as she wanted to?”
Richards responded, “Yeah, that would be okay with me.” This agreement is
sufficient to establish the contested element of Block’s crime under § 2251A even
under his narrow interpretation. But another attempted transfer of control
occurred in the agreement to allow Gholson to engage in sexual contact with
Richards’s daughter with Richards present. Because the statute does not
require a transfer of the full panoply of parental control, Richards could impose
limitations on Gholson’s actions while still transferring custody or control within
the statutory meaning. Thus, the basic deal between Richards and Gholson,
independent of the latter’s plans to take the child alone to Sea World, violated
§ 2251A.
Finally, Block argues that the rule of lenity prevents his conviction under
§ 2251A. Lenity is appropriate where “there is a grievous ambiguity or
uncertainty in the statute.” Muscarello v. United States, 524 U.S. 125, 138-39,
118 S. Ct. 1911, 1919 (1998). According to Block, “grievous ambiguity” exists in
the meaning of “custody or control,” and lenity is necessary to avoid punishing
the same conduct under §§ 2251 and 2251A. The Fourth Circuit rejected
precisely this argument in United States v. Buculei, 262 F.3d 322, 333 (4th Cir.
2001), explaining that no ambiguity existed as to the applicability of § 2251A.
Id. Additionally, the unambiguous meaning of § 2251A does not duplicate § 2251;
the latter punishes a defendant who “persuades” or “induces” a child to engage
in sexually explicit conduct without having custody or control of the minor.
18 U.S.C. § 2251(a). Where the law is unambiguous, the rule of lenity does not
apply.
With a proper understanding of the law, Block’s claim that there was
insufficient evidence to conclude that he aided and abetted Richards in offering
to sell or transfer custody or control of the latter’s daughter in violation of
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18 U.S.C. § 2251A fails. His appeal to the rule of lenity is similarly
unpersuasive.
For the foregoing reasons, the conviction is AFFIRMED.
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