United States Court of Appeals
For the First Circuit
No. 13-1701
UNITED STATES OF AMERICA,
Appellee,
v.
CAREY GONYER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Howard and Thompson, Circuit Judges,
and Laplante,* District Judge.
Hunter J. Tzovarras for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.
August 4, 2014
*
Of the District of New Hampshire, sitting by designation.
LAPLANTE, District Judge. In 2010, Carey Gonyer began
sexually abusing a fifteen-year-old boy, “TT”, who worked alongside
him at a dairy farm. The following year, at Gonyer’s urging, TT–-
who had, in the interim, turned sixteen--took photographs of his
own genitals and gave the pictures to Gonyer. Based on these
photographs, Gonyer was charged with three counts of sexual
exploitation of a child, in violation of 18 U.S.C. §§ 2251(a) and
2256(2), and one count of possession of child pornography, in
violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A).
The case proceeded to trial, where the district court,
over Gonyer’s objection, permitted the prosecution to elicit
testimony about Gonyer’s sexual abuse of TT. The jury convicted
Gonyer on all four counts. At sentencing, the district court
applied several Sentencing Guideline enhancements, based on TT’s
age at the time his relationship with Gonyer began, the fact that
Gonyer’s offenses included a sexual act or contact, and Gonyer’s
supervisory control over TT, see U.S.S.G. § 2G2.1(b), resulting in
a sentence of 420 months’ imprisonment. Gonyer appeals both his
conviction and sentence. Because the sexual abuse evidence was
admissible under Federal Rule of Evidence 404(b) to, among other
things, establish Gonyer’s motive for the offenses and show that
his possession of the photographs of TT was not a matter of mistake
or accident, and because the sentencing enhancements were
permissible under Guidelines § 2G2.1(b), we affirm.
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I. BACKGROUND
In 2010, Gonyer, who was 41 years old, resided in an
apartment at the dairy farm where he was employed as a farmhand.1
In the spring of that year, TT, a fifteen-year-old boy who lived
nearby, began working on the farm as well, helping Gonyer to clean
animal pens, feed and milk the cows, and perform various other
chores. TT had not previously done this kind of work, and Gonyer
taught him what to do.
At first, because school was still in session, TT worked
at the farm only on weekends. After school let out for the summer,
TT began working at the farm every day. Gonyer supervised TT’s
work, and frequently tendered his paycheck. TT also began spending
time with Gonyer outside of work. The two would drive to a nearby
city, where Gonyer would buy TT gifts (including a stereo, a B.B.
gun, clothing, cigarettes, and a DVD of adult pornography). They
also spent time together watching television in Gonyer’s apartment.
About a month after TT began working at the farm, he
spent the night at Gonyer’s apartment because he anticipated having
to awaken early the next morning to milk the cows. The two began
the evening watching television, per usual, but at some point
Gonyer suggested that they watch a DVD of adult pornography. While
watching this DVD, Gonyer began touching TT’s genitals; this
1
Out of concern for TT’s privacy (and that of other faultless
individuals associated with the farm), we do not mention any
specifics, such as the name of the farm or its environs.
-3-
contact eventually led to anal intercourse. Over the next several
months, TT spent most nights at Gonyer’s apartment, and Gonyer
regularly engaged in sexual acts with TT.
When fall came, TT returned to school and only worked at
the farm on weekends, until winter, when the amount of work at the
farm dwindled. While TT was not working at the farm, Gonyer
remained in touch with him via cellular phone. Gonyer and TT would
exchange text messages, some of which were sexual in nature. The
following summer, following his sixteenth birthday, TT began
working on the farm on a full-time basis again, and Gonyer resumed
sexually abusing him.
Gonyer and TT continued text-messaging one another. On
three different occasions in the summer and fall of 2011, Gonyer
requested that TT take a picture of his own penis and send it, via
cell phone, to Gonyer. TT complied. On another occasion, while TT
and Gonyer were working on a piece of machinery at the farm, Gonyer
asked TT to take a picture of TT’s penis using Gonyer’s phone. TT
again complied, retreating to the farmhouse’s cellar to complete
the task while Gonyer remained outside.
Gonyer’s sexual abuse of TT, and the photographs TT had
taken at Gonyer’s urging, were discovered later in 2011, when TT
divulged the abuse to his school guidance counselor. A grand jury
returned an indictment charging Gonyer with the aforementioned
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counts of child sexual exploitation and possession of child
pornography. Gonyer pleaded not guilty.
On the eve of trial, Gonyer moved in limine to preclude
TT from testifying to Gonyer’s acts of sexual abuse. Conceding
that testimony regarding the abuse was potentially relevant under
Rule 404(b) of the Federal Rules of Evidence “to show motive, plan
or intent,” Gonyer argued that it was nonetheless inadmissible
under Rule 403 because its probative value was substantially
outweighed by the danger of unfair prejudice. The following day,
before the prosecution had responded, the district court denied the
motion on the record at an in-chambers conference, reasoning that
TT’s testimony regarding the sexual abuse would establish that
Gonyer’s alleged conduct in enticing TT to take the photographs was
“not a matter of mistake or accident,” and that any prejudice to
Gonyer from the admission of this testimony could be cured by
instructing the jury that it could not treat Gonyer’s prior abuse
of TT as character evidence. In its jury charge at the close of
the case, the court gave just such an instruction, cautioning the
jury that it could not use evidence of the abuse to infer that
Gonyer had committed the offenses with which he was charged.
After about three hours of deliberations, the jury
convicted Gonyer of all four counts. Following the conviction, the
probation office prepared a Presentence Investigation Report
(“PSR”) for Gonyer. As is relevant here, for the three counts of
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sexual exploitation of a child, the PSR recommended a two-level
increase to the base offense level of 32 because TT was fifteen
years old when his relationship with Gonyer began, see U.S.S.G. §
2G2.1(b)(1)(B); another two-level increase because Gonyer had
engaged in oral and anal sex with TT, see id. § 2G2.1(b)(2)(A); and
a third two-level increase because TT had been in Gonyer’s care,
custody, or control, see id. § 2G2.1(b)(5).2 Gonyer objected to
these increases in a sentencing memorandum, which argued that the
enhancements were unwarranted because the pictures Gonyer had
persuaded TT to take did not depict any sexual acts, and because TT
was sixteen and not “spending the night at Mr. Gonyer’s home or in
his direct care” when they were taken.
The district court rejected these arguments. It
concluded that Gonyer’s conduct with TT beginning when the boy was
fifteen, including the sexual abuse, was a part of the “grooming”
process that persuaded or induced TT to take the photos, warranting
enhancements under §§ 2G2.1(b)(1)(B) and 2G2.1(b)(2)(A). The court
further noted that Gonyer was effectively TT’s supervisor at the
farm, which was the location where the acts of abuse occurred (and
where one of the pictures was taken), warranting, in the court’s
view, application of § 2G2.1(b)(5). The result of these and other
2
Gonyer was sentenced under the 2012 version of the Sentencing
Guidelines, the version in effect at the time of sentencing. See
United States v. Acosta-Colón, 741 F.3d 179, 192 n.7 (1st Cir.
2013). Unless otherwise noted, all citations in this order are to
that version of the Guidelines.
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sentencing enhancements not questioned here was a total offense
level of 43, which, when coupled with Gonyer’s criminal history
category of III, yielded an advisory Guidelines sentence of life
imprisonment. Using this as its starting point, the court imposed
the prosecution’s recommended sentence of 420 months’ imprisonment.
II. THE CONVICTION
In contesting his conviction, Gonyer raises a single
challenge, asserting that the district court erred by permitting TT
to testify to Gonyer’s sexual abuse under Federal Rules of Evidence
404(b) and 403. The familiar language of Rule 404(b)(1) prohibits
the use of a person’s other acts “to prove a person’s character in
order to show that on a particular occasion the person acted in
accordance with the character.” In other words, as this court has
previously explained, the rule prohibits the prosecution from
introducing “evidence that is extrinsic to the crime charged”
solely “for the purpose of showing villainous propensity.” United
States v. Roszkowski, 700 F.3d 50, 56 (1st Cir. 2012). Rule
404(b)(2) nonetheless permits such evidence to be used if it has
special relevance, that is, if it is relevant “for another purpose,
such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”
Even if evidence of prior acts has such special relevance, however,
that is not the end of the inquiry; the evidence may still be
excluded “if its probative value is substantially outweighed by a
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danger of . . . unfair prejudice.” Fed. R. Evid. 403. Gonyer
attacks both the district court’s conclusion that evidence of his
prior sexual abuse of TT had special relevance and the court’s
determination that the danger of unfair prejudice from that
evidence did not substantially outweigh its probative value.
Before proceeding to the merits of Gonyer’s arguments, we
pause to address a threshold issue concerning the standard to
employ when reviewing the district court’s evidentiary rulings.
Gonyer acknowledges that historically, this court has reviewed the
admission of prior bad acts evidence under Rules 404(b) and 403 for
abuse of discretion. See, e.g., United States v. Doe, 741 F.3d
217, 229 (1st Cir. 2013). He argues, however, that in so doing, we
are “in the minority,” and urges us to reconsider our position and
to apply the multi-tiered standard of review espoused in United
States v. Clay, 667 F.3d 689 (6th Cir. 2012). As the Court of
Appeals for the Sixth Circuit explained in that case, its three-
step approach involves an initial, clear-error review of the
district court’s determination that “other acts” took place; a de
novo review of the determination that the acts had special
relevance under Rule 404(b); and, finally, abuse-of-discretion
review of the determination that the evidence’s probative value
outweighs its unfairly prejudicial impact. See id. at 693.
The proposition that this panel would be free to adopt
Clay’s approach if so inclined is a doubtful one, at best. It is
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well settled that a newly-constituted panel of this court may not
depart from the precedent established by prior panel decisions
absent some compelling reason, usually an intervening decision of
the Supreme Court or an en banc sitting of this court. See United
States v. Troy, 618 F.3d 27, 35-36 (1st Cir. 2010). Gonyer has
identified no such reason.
Even if he had done so, moreover, Gonyer did not contest
the special relevance of evidence regarding the sexual abuse before
the district court. Rather, as discussed in the preceding section,
he in fact conceded that such evidence was potentially relevant
under Rule 404(b), and instead chose to argue that it was unduly
prejudicial and should thus be excluded under Rule 403. Gonyer’s
claim that the district court erred in concluding that the evidence
had special relevance is, at a minimum, forfeited, so that we
review the district court’s determination of the evidence’s
relevance under Rule 404(b)(2) only for plain error, see Puckett v.
United States, 556 U.S. 129, 134-35 (2009); United States v. Reed,
977 F.2d 14, 17 (1st Cir. 1992), while still reviewing its Rule 403
determination for abuse of discretion. We find neither.
We turn first to the Rule 404(b)(2) determination. Under
the circumstances presented in this case, TT’s testimony about his
abuse at Gonyer’s hands plainly had special relevance apart from
establishing Gonyer’s propensity to commit sexual crimes against
minors. We have previously remarked that evidence should “not be
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examined in isolation, but in its particular factual setting,” and
that, under Rule 404(b), “[e]vidence of prior conduct is admissible
‘to complete the story of the crime on trial by proving its
immediate context of happenings near in time and place.’” United
States v. D’Alora, 585 F.2d 16, 20 (1st Cir. 1978) (quoting 2
Weinstein’s Evidence § 404(09), at 404-57 (1975)); see also United
States v. Dworken, 855 F.2d 12, 27 (1st Cir. 1988) (“Evidence of
other criminal acts is admissible when it is so blended or
connected with the one on trial as that proof of one incidentally
involves the other; or explains the circumstances thereof.”)
(quotation marks and alterations omitted; emphasis in original).
That holding applies here, where the prior acts of abuse and the
charged conduct involved the same victim and same perpetrator, and
occurred within more or less the same period of time. Evidence of
the abuse provided critical context about Gonyer’s relationship
with TT.
By far the most critical aspect of that context is that
it establishes Gonyer’s motive for the charged offenses. Gonyer
suggests that the prosecution could have made its case against him
without evidence that he sexually abused TT. Maybe so. But had
the prosecution not introduced that evidence, the jury would have
been presented with an incomplete picture of why Gonyer would ask
TT to take and send pornographic photographs, and, for that matter,
why TT would acquiesce to such a request. TT’s testimony regarding
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the abuse provided the answers: Gonyer was sexually attracted to
TT, as evidenced by his prior sexual abuse of the child, and, due
to that abusive relationship, TT was predisposed to honoring such
a request. Along the same lines, TT’s testimony regarding the
abuse also served to dispel any suggestion that TT took explicit
photographs of his own initiative and sent them to Gonyer’s phone
without having been solicited to do so. In this fashion, evidence
of the abuse helped establish that Gonyer’s possession of the
photographs was not a matter of mistake or accident on his part (as
the district court specifically noted).
Although Gonyer argues otherwise, the use of the evidence
for those purposes is not equivalent to using it to show that he
was predisposed to committing sexual acts involving minors.
Rather, it served to avoid creating the inaccurate impression that,
prior to the time of the offenses, Gonyer and TT had been nothing
more than coworkers and friends. We find no error, plain or
otherwise, in the district court’s determination that evidence of
Gonyer’s abuse of TT had special relevance.3
3
For reasons elucidated in Parts III.A and III.B, infra, it
may have been possible for the district court to conclude that
Gonyer’s abuse of TT was part of the process of inducement,
coercion, or persuasion that formed the basis of the sexual
exploitation charges against Gonyer, making a Rule 404(b)(2)
analysis unnecessary. Because, however, the district court,
prompted by Gonyer’s concession that evidence of the abuse was
potentially relevant under Rule 404(b)(2), analyzed the evidence
under that rule, and because its determination was not erroneous
for the reasons just discussed, we need not travel any further down
this road, and simply note the issue as a potential alternative
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Nor can we conclude that the district court abused its
discretion in determining that the danger of unfair prejudice from
the evidence did not outweigh its probative value. A district
court’s “weighing of the positive and negative effects of specific
evidence demands considerable respect, especially when, as in this
case, limiting instructions were deftly and timely deployed.”
United States v. Ladd, 885 F.2d 954, 959 (1st Cir. 1989). It is
only in rare and “extraordinarily compelling circumstances” that we
will, “from the vista of a cold appellate record, reverse a
district court’s on-the-spot judgment concerning the relative
weight of probative value and unfair effect.” Id. The probative
value of the evidence was high; as noted, it provided necessary
context that helped explain the relationship between Gonyer and TT,
established their motives for acting as they did, and undermined
the possible inference that Gonyer’s possession of the offending
images was the result of happenstance, accident, or mistake. “Even
grisly evidence–-including evidence of homicides–-has been
admitted” because it possessed such “contextual significance.” Id.
(citing Real v. Hogan, 828 F.2d 58, 61 (1st Cir. 1987); United
States v. Moreno-Morales, 815 F.2d 725, 740 (1st Cir. 1987)).
basis upon which we could affirm the district court’s order. See
United States v. Shinderman, 515 F.3d 5, 12 (1st Cir. 2008) (this
court may affirm the district court’s order “on any independent
ground made manifest by the record”).
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It is undoubtedly true that evidence of Gonyer’s sexual
abuse of TT could have produced emotional reactions in some members
of the jury. But “Rule 403 does not ensure that trials–-even
criminal trials–-will be antiseptic affairs.” United States v.
Mehanna, 735 F.3d 32, 64 (1st Cir. 2013). The district court took
pains to negate the danger that the jury would use the evidence for
improper purposes, giving a powerful limiting instruction that
thrice admonished the jury that it should not use evidence of
Gonyer’s prior acts of sexual abuse against TT to infer that he had
also committed the acts for which he was on trial–-an instruction
we presume the jury followed. See United States v. Bucci, 525 F.3d
116, 127 (1st Cir. 2008). And throughout the trial, the district
court was sensitive to the danger of unfair prejudice, and acted
with care to ensure that the jury would not be exposed to material
that could taint its verdict. Among other things, the court
forbade the prosecution from presenting evidence of accusations of
sexual abuse that other minors had leveled against Gonyer
(including an occasion on which Gonyer allegedly urged another
minor to take photographs of his own buttocks and send them to
Gonyer), citing Rules 403 and 404(b) as the basis for its rulings.
We see no reason to believe, on this record, that the district
court abused its discretion in ruling that the unfairly prejudicial
effect of TT’s testimony about Gonyer’s abuse did not substantially
outweigh its probative value.
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III. THE SENTENCE
Again, the district court applied three two-level
enhancements to U.S.S.G. § 2G2.1(b)’s base offense level of 32 for
sexual exploitation of a child--one two-level enhancement for TT’s
age, another for the inclusion of a sexual act or contact in the
offense, and a third for Gonyer’s supervisory control over TT.
Gonyer contends that the district court erred in applying each of
these enhancements. We review the district court’s interpretation
and application of the Sentencing Guidelines de novo, and its
underlying factual findings for clear error. See, e.g., United
States v. Batchu, 724 F.3d 1, 7 (1st Cir. 2013). For the reasons
discussed below, we find no error in the district court’s
application of any of the three enhancements.
A. Age of the Victim
Guidelines section 2G2.1(b)(1)(B) provides for a two-
level enhancement “[i]f the offense involved a minor who had . . .
attained the age of twelve years but not attained the age of
sixteen years.” The district court acknowledged that TT was
sixteen years old when he took the photographs that prompted the
charges against Gonyer. The court noted, however, that to prove
the charges of sexual exploitation of which Gonyer was convicted,
the prosecution was required to show that Gonyer employed, used,
persuaded, induced, enticed, or coerced TT to engage in the
sexually explicit conduct depicted in the photographs, see 18
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U.S.C. § 2251(a), and concluded that the “process of enticement”
took place “over the year preceding the time that the photographs
were taken,” beginning when TT was fifteen years old. The court
then explained that it would apply the age-of-the-victim
enhancement “[b]ased on [its] analysis of the statute.”
On appeal, the parties have bid adieu to the district
court’s reasoning. Whereas, as just discussed, the district court
appears to have relied primarily upon the notion that Gonyer’s
conduct with TT when the boy was fifteen was part and parcel of the
offense of conviction as defined by the statute, Gonyer proceeds
upon the assumption that the court’s application of the age-of-the-
victim enhancement depended upon a conclusion that this conduct was
“relevant conduct” within the meaning of U.S.S.G. § 1B1.3(a)(1)(A),
which permits a sentencing court to consider “all acts and
omissions committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant . . . that occurred
during the commission of the offense of conviction, in preparation
for that offense, or in the course of attempting to avoid detection
or responsibility for that offense” when determining specific
offense characteristics. The government takes the bait and runs
with it, seeking to defend that conclusion. We are not inclined to
follow suit.
As just noted, in choosing to apply this enhancement, the
district court quoted the language of 18 U.S.C. § 2251(a), which,
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in relevant part, provides for the punishment of “[a]ny 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.” It continued:
[T]he trial evidence is that the defendant
befriended the victim when he was 15, bought
him cigarettes, sneakers, a jacket, made trips
. . . to shop with him, showed him
pornographic movies, and spent about a year
grooming the victim, during which time he was
sexually abusing him before the photographs
were taken.
There’s no question, from my perspective,
based on the testimony I heard, that the
defendant viewed his gifts as a quid pro quo
for sex from the [victim]. According to the
victim’s testimony, in the defendant’s own
very crude words, he told the victim, when he
bought him a BB gun, that he would take it out
[on] his ass. The defendant’s attempt to
isolate the taking of the photographs from the
one-year-old-plus relationship is unrealistic,
from my perspective, and also contrary to the
statute.
The victim here testified that it was the
defendant who told him to take the photographs
of his genitals, and the victim did so at his
request. And turning this around in a
different way, let’s just assume . . . that
the defendant had approached a 16-year-old boy
without any relationship with that boy and
demanded that that boy go into another room or
text him and tell him to take a picture of his
genitals. That simply wouldn’t happen. So to
take the photo –- the act of photography, the
demand, and the photograph and the sending of
the photographs as the crime, I don’t think is
consistent with the –- a realistic
understanding of what happened here.
Further, the determination that he was 15
when, in part, this –- when this crime began
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depends on –- or is consistent with the jury
finding that the defendant, quote, employed,
used persuaded, induced, or enticed –- enticed
or coerced the victim. This process of
persuasion began in the summer before the
photographs were taken. That’s the charge.
The charge is that the defendant persuaded or
induced or enticed the victim in this case to
produce the images. That process of
enticement, what is sometimes referred to as
grooming, is something that had taken place
over the year preceding the time that the
photographs were taken.
The emphasized portions of the district court’s remarks
make clear that the court’s analysis relied upon the language of
the statute, and that the court viewed the pre-photograph conduct
as part of the offense of conviction itself. To be sure, after
making these remarks, the district court then briefly mentioned §
1B1.3, the “relevant conduct” guideline, and cited an Eleventh
Circuit case that reached a similar conclusion based in part on its
application of § 1B1.3. See United States v. Holt, 408 F. Appx.
229, 238 (11th Cir. 2010). Viewing the district court’s references
to § 1B1.3 in context, though, we are unable to view those
references as anything more than an alternative justification for
the court’s application of the age-of-the-victim enhancement.
Indeed, after referring to § 1B1.3, the district court concluded
its discussion of the age-of-the-victim enhancement by stating that
it would apply the enhancement “[b]ased on [its] analysis of the
statute” and “the facts in the case” (emphasis added). And, when
the court subsequently issued written post-hearing “Findings
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Affecting Sentencing” that cited provisions of the Guidelines
pervasively, those findings did not so much as mention, let alone
discuss, § 1B1.3.
While it is an oft-repeated maxim that we are “not wedded
to the lower court’s rationale,” Shinderman, 515 F.3d at 12,
neither should we ignore that rationale simply because the parties
have chosen to do so. We find it unnecessary to explore the
precise contours of what qualifies as “relevant conduct” under §
1B1.3, and affirm the district court’s application of the age-of-
the-victim enhancement based upon its conclusion, just detailed,
that Gonyer’s conduct with TT when the boy was fifteen was part of
the offense of conviction defined by the statute.4
We turn to Gonyer’s arguments, which, though they are
directed at the district court’s alternative “relevant conduct”
rationale, still have some applicability to the court’s primary
“offense of conviction” rationale. Gonyer argues that in order for
§ 2G2.1(b)(1)(B) to apply to a defendant convicted of sexually
exploiting a child, the minor must be between the ages of twelve
and fifteen at the time a visual depiction of the minor engaging in
sexually explicit conduct is produced. In other words, as Gonyer
4
By failing to address the district court’s primary holding,
Gonyer has arguably waived any challenge to that holding. See
United States v. Fuchs, 635 F.3d 929, 933-34 (7th Cir. 2011). By
the same token, though, the government has arguably “waived
Gonyer’s waiver” by declining to defend that holding, see id., so
we address the substance of the district court’s holding, and do
not rely on this procedural shortcoming to affirm.
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puts it in his brief, he takes the position that the enhancement is
“a black or white question: Either the sexually explicit image
involved a minor under the age of 16 or it did not.” We do not
agree with this interpretation, and are aware of no binding
authority to support it.
Gonyer’s position results from a misunderstanding of the
variant of the offense of sexual exploitation of a minor of which
he was convicted, as defined by § 2251(a). The statute does not
simply criminalize the production of sexually explicit images of a
minor. Rather, as the district court noted, the statute prohibits
“employ[ing], us[ing], persuad[ing], induc[ing], entic[ing], or
coerc[ing]” a minor to engage in sexually explicit conduct for the
purpose of producing a visual depiction of the conduct. 18 U.S.C.
§ 2251(a). Indeed, to violate this section, it is not necessary
that a visual depiction of the minor engaging in sexually explicit
conduct actually results from the defendant’s actions (only that
the defendant intended that result). See United States v. Smith,
795 F.2d 841, 846 (9th Cir. 1986). It follows that the age of the
minor at the time an image (if any) is produced is not of
controlling relevance in deciding whether § 2G2.1(b)(1)(B) applies.
That, of course, begs the question: what is relevant to
this determination? Although Gonyer himself has not done so, one
might argue that because the offense is not fully realized until
the minor has engaged in sexually explicit conduct, the minor’s age
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at the time of that conduct should control. But the minor engaging
in sexually explicit conduct is only one element of the offense.
For the defendant to be convicted, it is also necessary for the
prosecution to establish that the defendant caused the minor to
engage in that conduct. The acts with which the defendant caused
the minor to engage in sexually explicit conduct–-whether they
consist of persuasion, inducement, enticement, coercion, or some
other thing--are as integral a part of the offense as the conduct
itself, so long as the defendant engaged in those acts with the
purpose of producing a visual depiction of the conduct. When
deciding whether the “offense involved” a minor of a certain age,
then, a sentencing court is justified in taking into account the
minor’s age at the time of those enticing or coercive acts.
The district court in this case did just that, and found
that TT was under the age of sixteen at the time Gonyer began the
process of persuading, enticing, or coercing him to engage in
sexually explicit conduct for the purpose of producing a visual
image thereof. In reaching this conclusion, the district court
cited evidence that Gonyer showed TT pornography when TT was only
fifteen, took him to a nearby city, bought numerous gifts for him
(including a DVD of adult pornography), and allowed him to smoke
(which his parents had forbidden), all actions that ingratiated
Gonyer with TT and reduced TT’s resistance to Gonyer’s overtures.
Gonyer challenges the court’s reliance on this evidence, arguing
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that “there is no indication” that this conduct “was intended as
preparation for the future photographs,” as opposed to his sexual
abuse. We again disagree.
Gonyer’s “grooming” conduct was undoubtedly intended, in
some part–-perhaps even in principal part--to persuade TT to engage
in sexual acts with Gonyer. That does not preclude a conclusion
that the same conduct was undertaken with the additional purpose of
producing sexually explicit images of the boy. As the Court of
Appeals for the Second Circuit has remarked, “[t]he criminal law
applies to everyone, not just the single-minded.” United States v.
Sirois, 87 F.3d 34, 39 (2d Cir. 1996). In that case, the court
observed that “a person who transports children across state lines
both to engage in sexual intercourse with them and to photograph
that activity is no less a child pornographer simply because he is
also a pedophile.” Id. We could say the same of a person who
grooms a child both to engage in sexual acts with him and to pose
for sexually explicit photographs.
There was ample evidence to support the district court’s
determination that at least one of the specific purposes of
Gonyer’s conduct with TT when the boy was fifteen was to persuade
him to produce sexually explicit photos. Most significantly, the
district court heard evidence that, prior to meeting TT, Gonyer had
approached at least one other child with whom he worked and asked
to take sexual photographs of that child, that Gonyer claimed to
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have had produced images of himself sexually abusing another child
with whom he worked, and that Gonyer had in his possession images
of the sexual abuse of another local child. In addition, only a
few years before meeting TT, Gonyer had been convicted of
possession of child pornography in violation of 18 U.S.C. §
2252A(a)(5)(B)--a fact of which the district judge was well aware,
since he had also presided over the proceedings in that case.
Given Gonyer’s past interest in pornographic images of minors, and
his previous attempts to obtain sexual images of underage co-
workers, it was not unreasonable for the district court to draw the
conclusion that Gonyer’s beneficence to TT was, from the very
beginning, undertaken with the goal of persuading or enticing TT to
produce such images.5 Although the court could well have concluded
that these acts were not undertaken for that purpose, it did not
commit clear error in reaching the opposite conclusion.
We do not mean to suggest that a district court is
justified in viewing every kindness a defendant does for his victim
as part of a process of persuasion leading up to the consummation
of the offense. As discussed, a conviction for the crime of sexual
exploitation of a minor requires that the defendant’s acts of
5
We note as well that Gonyer and TT began exchanging text
messages, including sexually explicit text messages, when the boy
was still fifteen. That Gonyer later prevailed upon TT to take and
send him sexually explicit photographs through the same medium
cannot easily be divorced from the prior history of communications
between the two.
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persuasion, enticement, or coercion were undertaken with an aim
toward producing a depiction of a minor engaging in sexually
explicit conduct. Under the facts of this case, the district
court’s conclusion that Gonyer had such a purpose when he began to
“groom” TT, such that his offenses began when TT had “attained the
age of twelve years but not attained the age of sixteen years,” was
not an impermissible view of the evidence. The district court did
not err in imposing a two-level enhancement under § 2G2.1(b)(1)(B).
B. Sexual Act or Contact
Guidelines section 2G2.1(b)(2)(A) calls for a two-level
enhancement if “the offense involved . . . the commission of a
sexual act or sexual contact.” The district court acknowledged
that the photographs that led to the charges against Gonyer did not
depict any sexual act or contact. It nonetheless found that, as
with Gonyer’s conduct with TT in general when the boy was fifteen,
Gonyer’s sexual abuse of TT was part of the course of “grooming”
conduct that led up to TT engaging in the sexually explicit conduct
depicted in the photographs, and applied the § 2G2.1(b)(2)(A)
enhancement on that basis.6
6
The parties have again characterized the district court’s
application of this enhancement as dependent upon U.S.S.G. § 1B1.3,
the “relevant conduct” guideline. Again, though, the district
court’s comments at the sentencing hearing made clear that it was
relying principally on the offense as defined by the statute. The
court explained that it viewed “the taking of the photographs as
being interwoven with this history of sexual abuse and the history
of persuasion and enticement that the defendant engaged in over the
year up to the time that the photographs were taken” such that the
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In challenging the application of this enhancement,
Gonyer again makes the mistake of viewing the offense too narrowly.
Focusing on the photographs that TT took at Gonyer’s request, he
argues that because his sexual abuse of TT is not depicted in the
photographs, the abuse and photographs “occurred at different
times,” and “[t]he photos did not depict the same type of sexual
misconduct [he] engaged in” with TT, the “sexual act or conduct”
enhancement cannot be applied in this case. But, as just
discussed, the offense of sexual exploitation of a minor consists
of more than creating photographs, and, indeed, need not involve an
actual photograph at all. See Smith, 795 F.2d at 846. So, when
determining whether the “offense involved” a sexual act or contact,
a district court need not look solely at any photographic or other
visual images produced as a result of the offense. The court may
also consider whether the defendant’s acts of “employing, using,
persuading, inducing, enticing, or coercing” the minor to engage in
sexually explicit conduct for the purpose of producing a depiction
of that conduct involved a sexual act or contact.
Gonyer hits closer to the mark in arguing that “there is
simply no evidence” that he abused TT “with the intent of preparing
sexual abuse was part of “the offense itself.” Because, as we have
already explained, see Part III.A, supra, we are unwilling to
disregard the district court’s stated rationale for its ruling,
which focused on the offense conduct under the applicable statutory
language, we analyze the issue as the district court itself did–-on
the basis of the statute, rather than § 1B1.3.
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the minor to take the photographs in the charged offense.” He
notes the lack of direct evidence that he “talked about or
requested the photos as part of” the abuse, that TT “took the
photos because of” the abuse, or that the abuse was “used as
leverage or an enticement to induce the taking of the photos.” We
are cognizant of these evidentiary lacunae, and, were we asked to
determine in the first instance whether Gonyer’s sexual abuse of TT
was undertaken to persuade or induce TT to engage in sexually
explicit conduct on film at a later date, we might well reach a
different conclusion than the district court. But we are not
encountering this issue in a vacuum; the district court has already
spoken on the issue, and our standard of review is a deferential
one. When reviewing for clear error, we will reverse only if, “on
the whole of the record, we form a strong, unyielding belief that
a mistake has been made.” United States v. Doe, 741 F.3d 217, 235
(1st Cir. 2013). We harbor no such belief, for substantially the
same reasons mentioned in the preceding section.7 Cf. Holt, 408
7
The government argues that application of the enhancement was
appropriate because, “[h]ad there been no prior sexual subjugation,
there is no reason to believe TT would have complied with Gonyer’s
orders to photograph himself.” But even if that is true, we do not
agree with the proposition that but-for causation between a
defendant’s prior sexual contact with the minor and the offense of
conviction is a sufficient basis upon which to apply §
2G2.1(b)(2)(A). Cf. United States v. Schaefer, 557 F.3d 440, 448
(“[T]he mere fact that there was previous sexual abuse does not
prove that the previous abuse was perpetrated in preparation for
the subsequent offense of conviction . . . .”), vacated, 573 F.3d
267 (6th Cir. 2009). In the present case, however, the district
court’s application of the enhancement rested on more than mere
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Fed. Appx. at 238 (district court committed no clear error in
considering defendant’s prior sexual abuse of victim when
sentencing him for sexual exploitation of a minor; “it is entirely
plausible that [defendant’s] inappropriate sexual relationship with
[victim] groomed her to participate in [defendant’s] production of
pornographic images”). We accordingly affirm the district court’s
application of the § 2G2.1(b)(2)(A) enhancement.
C. Supervisory Control
Guidelines section 2G2.1(b)(5) provides for a two-level
enhancement “[i]f the defendant was a parent, relative, or legal
guardian of the minor involved in the offense, or if the minor was
otherwise in the custody, care, or supervisory control of the
defendant.” The district court concluded that application of this
section was warranted due to the stark 26-year age difference
between Gonyer and TT, the fact that Gonyer trained and supervised
TT at work, and the fact that TT frequently spent the night at
Gonyer’s apartment in anticipation of working at the farm early the
next morning. Gonyer does not dispute that these factors could
create a situation in which TT was in his “custody, care, or
supervisory control.” Rather, he argues that, these factors
notwithstanding, the district court’s conclusion was erroneous
because he was not actually present when TT engaged in the sexually
explicit conduct, and took the photographs, at the center of the
but-for causation, as we have explained.
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charges against him. Under Gonyer’s view, his custody or control
of TT at the exact time of that conduct is a prerequisite to §
2G2.1(b)(5)’s application.
For reasons already discussed in Parts III.A and III.B,
supra, Gonyer’s attempt to limit the scope of his offenses to TT’s
production of sexually explicit photographs misapprehends the
nature of those offenses, which also encompass his actions in
persuading, inducing, or coercing TT to engage in the conduct
depicted in the photographs. And, as just noted, Gonyer does not
challenge the proposition that TT was in his “custody, care, or
supervisory control” during at least some of those actions. Even
if we were to indulge Gonyer’s unduly restrictive view of the
statute, however, the district court did not err in applying the
supervisory-control enhancement because TT was, in fact, in
Gonyer’s supervisory control at the time of at least one of the
photographs in question was taken.
As the Application Notes to § 2G2.1(b)(5) explain, the
section was “intended to have broad application” and to include
“offenses involving a minor entrusted to the defendant, whether
temporarily or permanently.” Among the examples listed in the
Notes are “teachers, day care providers, baby-sitters, or other
temporary caretakers.” TT’s testimony at trial established that he
took one of the sexually explicit photographs while working with
Gonyer at the farm, where Gonyer was effectively TT’s supervisor
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and was often the sole adult in charge of the boy. Indeed, at the
time the photograph was taken, Gonyer was the sole adult in charge
of TT, who had been “entrusted to” his care by the farm’s owners
(to whom, in turn, TT’s parents had entrusted the boy). The
position Gonyer occupied was that of a “temporary caretaker,” and
is readily analogized to the position occupied by a teacher or
baby-sitter. Cf. United States v. Beasley, 688 F.3d 523, 535 (8th
Cir. 2012) (enhancement applied to shopkeeper who hosted “overnight
lock-ins” with minors where he “was the primary, and maybe the
only, adult present” and thus “exercised at least as much ‘care,
custody, or supervisory control’ [as] a teacher, babysitter, or day
care provider”).
Gonyer points out that though he was with TT immediately
before, and immediately after, the photograph was taken, TT
actually took the photo in the farmhouse’s basement while Gonyer
remained outside. Because TT was “away from” him at the time the
photograph was taken, Gonyer asserts, TT could not have been under
his control. This is far too narrow a view of what it means for a
minor to be “in the custody, care, or supervisory control” of a
person. Common experience teaches that a caretaker need not occupy
the same physical space as his or her charge to have custody or
control of that person. It would scarcely make sense to say, for
example, that a parent’s custody or control of a child ends when
the parent steps outside to check the mailbox, and only resumes
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when the parent comes back inside. No one would consider a
babysitter’s custody or control of a child to end the instant the
sitter puts the child to bed and then retreats to another room to
wait for the child’s parents to return.
That Gonyer was not in the immediate vicinity when TT
took the photograph, then, does not preclude the application of §
2G2.1(b)(5), so long as TT was in Gonyer’s care, custody, or
control when the sexually explicit conduct that formed the basis of
the charges took place. He was. The district court did not err in
imposing a two-level enhancement under that section.
IV. CONCLUSION
For the foregoing reasons, Gonyer’s conviction and
sentence are affirmed.
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