USCA1 Opinion
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
No. 96-1709
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTOPHER B. CARROLL,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge] ___________________
_________________________
Before
Selya, Circuit Judge, _____________
Aldrich, Senior Circuit Judge, ____________________
and Boudin, Circuit Judge. _____________
_________________________
M. Kristin Spath, Assistant Federal Defender, Federal ___________________
Defender Office, on brief for appellant.
Paul M. Gagnon, United States Attorney, and Jean B. Weld, _______________ ____________
Assistant United States Attorney, on brief for appellee.
_________________________
February 3, 1997
_________________________
SELYA, Circuit Judge. In this case a jury convicted SELYA, Circuit Judge. _____________
defendant-appellant Christopher B. Carroll of violating a federal
child pornography statute. Following the imposition of sentence,
Carroll appeals. The key question involves an elusive comma.
Having found the comma, we affirm.
I. I. __
Background Background __________
In the summer of 1995, the appellant separated from his
wife, Tammy. While sorting out her husband's personal effects,
Tammy discovered two rolls of undeveloped film. The film
contained 46 photographs of the appellant's adolescent niece,
Brittany.1 Many of these photographs depicted Brittany in
various states of undress, wearing her mother's lingerie, holding
sex toys and inserting them in body cavities, and posing
suggestively. After an investigation spearheaded by the Federal
Bureau of Investigation (FBI), the government concluded that the
appellant took these photographs on January 8, 1995 (when
Brittany was 13 years of age). Carroll's indictment, trial,
conviction, and sentencing followed.
II. II. ___
Analysis Analysis ________
In this venue, the appellant advances two assignments
of error. We discuss them in sequence.
____________________
1Brittany is a pseudonym which we employ in compliance with
the confidentiality requirements of 18 U.S.C. 3509(d)(1)
(1994).
2
A. A. __
Sufficiency of the Evidence Sufficiency of the Evidence ___________________________
The statute of conviction provides in relevant part:
Any person who [1] employs, uses,
persuades, induces, entices, or coerces any
minor to engage in, or [2] who has a minor
assist any other person to engage in, or [3]
who transports any minor in 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 shall be punished as provided [by
law] if such person knows or has reason to
know that such visual depiction will be
transported in interstate or foreign commerce
or mailed, or if such visual depiction has
actually been transported in interstate or
foreign commerce or mailed.
18 U.S.C. 2251(a)(1994) (arabic numerals supplied; propriety of
including bracketed comma to be discussed infra). In this _____
instance the government accused Carroll, under the first
statutory category, of using or persuading Brittany to
participate in making sexually explicit depictions. The judge
instructed the jurors that, in order to convict, they must find
that the government proved three elements beyond a reasonable
doubt: (1) that the defendant "knowingly used or persuaded [the
minor] to engage in sexually explicit conduct for the purpose of
producing a visual depiction of that conduct"; (2) that "at the
time such conduct was engaged in, the defendant knew that [the
minor] was under the age of eighteen years"; and (3) that the
defendant "knew or had reason to know that such visual depiction
would be transported in interstate commerce." The appellant
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claims that the government did not prove the last of these
elements and that the court therefore erred in denying his motion
for judgment of acquittal.
A trial court must enter a judgment of acquittal in a
criminal case if "the evidence is insufficient to sustain a
conviction." Fed. R. Crim. P. 29(a). We afford de novo review
to Rule 29 determinations, see United States v. Olbres, 61 F.3d ___ _____________ ______
967, 970 (1st Cir.), cert. denied, 116 S. Ct. 522 (1995), _____ ______
employing a familiar mantra: "If the evidence presented, taken
in the light most flattering to the prosecution, together with
all reasonable inferences favorable to it, permits a rational
jury to find each essential element of the crime charged beyond a
reasonable doubt, then the evidence is legally sufficient." Id. ___
In conducting this tamisage, we consider all the evidence, direct
and circumstantial, and resolve all evidentiary conflicts in
favor of the verdict. See United States v. Amparo, 961 F.2d 288, ___ _____________ ______
290 (1st Cir.), cert. denied, 506 U.S. 878 (1992). Under this _____ ______
formula, the evidence before us suffices to sustain a finding
that the appellant intended to transport the pornographic
depictions in interstate commerce (and therefore knew that they
would be so transported).
The government sought to satisfy the interstate
commerce element here in two ways, both featuring Brittany's
testimony. One approach involved the intended use of the
sexually explicit photographs. According to Brittany, the
appellant discussed with her his plan to scan the images into a
4
friend's computer and distribute them on the Internet. This
testimony, if believed, proved the government's point.
Transmission of photographs by means of the Internet is
tantamount to moving photographs across state lines and thus
constitutes transportation in interstate commerce. See United ___ ______
States v. Thomas, 74 F.3d 701, 706-07 (6th Cir.), cert. denied, ______ ______ _____ ______
117 S. Ct. 74 (1996); United States v. Maxwell, 42 M.J. 568, 580 _____________ _______
(U.S.A.F.C.A. 1995). And here, since the photographs were taken
in New Hampshire but the computer that Carroll allegedly planned
to use was located in Massachusetts, interstate transportation
perforce would have occurred when the appellant carried the
fruits of his labor across the New Hampshire border into
Massachusetts.
The government's second approach involved the
anticipated processing of the photographs. Brittany testified
without contradiction that Carroll told her he was going to take
the film to Massachusetts to be developed. If believed, this
testimony, in and of itself, would forge the requisite interstate
link. See 18 U.S.C. 10 (1994) (defining "interstate commerce" ___
for purposes of Title 18); cf. Rodriguez v. Clark Color Labs., ___ _________ _________________
921 F.2d 347, 349 (1st Cir. 1990) (indicating in dictum that
knowing mailing of undeveloped negatives across state lines
satisfies interstate commerce element under child pornography
statutes).
The appellant mounts a ferocious attack on the
credibility of Brittany's testimony. He notes, among other
5
things, that she did not mention the Internet connection when she
first testified; that, on cross-examination, she originally said
that her grandmother had told her that Carroll wanted to place
her pictures on the Internet; and that she changed her story on
redirect examination, asserting for the first time that the
appellant had mentioned the Internet to her. He also assails
Brittany's account of his supposed plan for developing the
prints, stressing that she did not make this revelation until
shortly before the trial.
For purposes of Rule 29, the government's proof passes
muster. The appellant's criticisms of Brittany's testimony go to
the weight of the evidence, not to its sufficiency, and therefore
were properly left to the jury. Some degree of inconsistency is
not surprising when a minor testifies about traumatic events
instigated by a close relative. Here, moreover, the
inconsistencies came in response to a series of leading questions
by defense counsel; on redirect, after refreshing her
recollection by perusing reports of interviews she had given to
an FBI agent, Brittany's memory cleared. In these circumstances,
a fair-minded jury could easily believe that her refreshed
recollection represented an accurate account of the relevant
events and that Carroll took the photographs with the intention
either to have them developed out of state, or to put them on the
Internet, or both.
This conclusion is reinforced by other evidence that
supports Brittany's testimony on redirect examination. The
6
record suggests, for example, that the appellant and his friend
(Doug Allen) had in the past attempted to scan pornographic
images into Allen's computer, thus permitting the jury to infer
that the two men knew how to circulate photographs on the
Internet and might want to put Brittany's likenesses to similar
use. Allen also testified that he and Carroll intended to form
an on-line dating service utilizing both pictures and personal
messages. Carroll apparently knew about a similar service being
offered in New Hampshire which depicted topless females with
black bars across their faces to conceal their identities. Given
this background, Brittany's testimony that Carroll told her that
he would put her picture on the Internet with a little black
strip across her eyes could have suggested to a thoughtful jury
that he intended to use the sexually explicit photographs to
promote his embryonic dating service.
We have said enough on this score. In the final
analysis, the appellant's argument boils down to a plaint that
the jury misjudged Brittany's veracity. Credibility
determinations are, of course, squarely within the jury's domain.
See United States v. Romero, 32 F.3d 641, 646 (1st Cir. 1994); ___ _____________ ______
United States v. O'Brien, 14 F.3d 703, 706-07 (1st Cir. 1994). ______________ _______
Eyewitness testimony is rarely seamless, and appellate courts
ordinarily should decline invitations to second-guess a jury's
considered decision about whether to credit particular testimony
despite the fact that it contains inconsistencies. This case
falls comfortably within the sweep of that generality. Resolving
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evidentiary conflicts and drawing reasonable inferences in the
government's favor, as the Rule 29 standard requires, see Olbres, ___ ______
61 F.3d at 970, the evidence is adequate to support a finding
that the appellant intended to transport the sexually explicit
photographs in interstate commerce. No more is exigible.
B. B. __
The Judge's Charge The Judge's Charge __________________
The appellant's next point is grammatically intriguing
but legally impuissant. He posits that a trial judge has an
obligation to instruct the jury on every element of the offense
of conviction, that flouting this obligation constitutes
reversible error, and that such a lapse occurred here. In the
circumstances of this case, we agree with the first two-thirds of
the appellant's triangular hypothesis, see, e.g., United States ___ ____ _____________
v. DiRico, 78 F.3d 732, 735 (1st Cir. 1996), but we take issue ______
with his conclusion that the charge omitted necessary
information.
In enumerating the elements of the offense, the judge
refused to include a requirement that the government prove the
defendant knowingly persuaded the minor to engage in sexually
explicit conduct "with the intent that such minor engage in" such
conduct for the purpose of producing a visual depiction thereof.
It is to this omission that the appellant assigns error,
asserting that section 2251(a) must be read so that the phrase
quoted above modifies all three types of actions criminalized
8
under the statute, namely, (1) employing, using, persuading,
inducing, enticing, or coercing a minor to engage in sexually
explicit conduct (the "use" category, under which Carroll was
charged); (2) having a minor assist another person to engage in
such conduct (the "assistance" category); and (3) transporting a
minor in interstate or foreign commerce (the "transportation"
category). This assertion depends almost entirely on the absence
of punctuation immediately following the quoted phrase; it is
only the putative lack of a comma that makes arguable the theory
that the phrase modifies the trailing phrase "any sexually
explicit conduct" and, thus, applies to all three categories of
proscribed behavior.2
For reasons that will appear, the district court bought
into the proposition that no comma lurked in the critical place
____________________
2A graphic iteration of a portion of the statute may help to
illustrate the point:
Any person [1] who employs, uses,
persuades, induces, entices, or coerces any
minor to engage in, or [2] who has a minor
assist any other person to engage in, or [3]
who transports any minor in interstate or
foreign commerce, or in any Territory or
Possession of the United States, with the ________
intent that such minor engage in[,] any any _____________________________________
sexually explicit conduct for the purpose of sexually explicit conduct for the purpose of
producing any visual depiction of such producing any visual depiction of such
conduct. . . . conduct. . . .
18 U.S.C. 2251(a) (arabic numerals, underscoring, and bold
facing supplied). The issue is whether the underscored phrase
should be read as accompanying the passage in bold face, or
whether it should be considered a part of what we have termed the
third category of proscribed conduct (and, thus, does not modify
the passage in bold face). This depends, in part, on whether the
text contains the bracketed comma.
9
and acted upon this perception; it assumed that Congress
inadvertently omitted the comma, read the statute as if it were
there, and confined the quoted phrase to the third category of
proscribed conduct (transportation).3 We review the district
court's solution to this enigma de novo. See Strickland v. ___ __________
Commissioner, Me. Dep't of Human Servs., 96 F.3d 542, 545 (1st _________________________________________
Cir. 1996) (holding that questions of statutory construction
receive nondeferential review).
Insofar as we can tell, the judge's underlying premise
that the statute did not contain a comma in the critical place
arose because both parties conceded as much below (as they do
on appeal); other federal courts had accepted the premise as
true, see, e.g., United States v. Thomas, 893 F.2d 1066, 1068 ___ ____ _____________ ______
(9th Cir.), cert. denied, 498 U.S. 826 (1990); and the statute as _____ ______
printed in updates of the United States Code Annotated, e.g., ____
West Supp. 1996, and as rendered in at least one computerized
legal research data base, omitted the comma. But appearances
often are deceiving. See Aesop, The Wolf in Sheep's Clothing ___ ______________________________
(circa 550 B.C.). In point of fact, the authoritative version of
the statute does contain the elusive comma. Congress added the
language in question by enacting Pub. L. 99-628, 3, 100 Stat.
3510 (1986). The text of the amendment, as disclosed in the
____________________
3The court impliedly premised this interpretive rationale on
its power to "disregard the punctuation [contained in a statute],
or repunctuate, if need be, [in order] to render the true meaning
of the statute." United States Nat'l Bank v. Independent Ins. _________________________ ________________
Agents of Am., Inc., 508 U.S. 439, 462 (1993) (citations ______________________
omitted).
10
Statutes at Large, shows a comma after "engage in." Conflicts
between the text of a statute as it appears in the Statutes at
Large, on one hand, and in usually reliable but unofficial
sources such as the United States Code Annotated, on the other
hand, are rare, but, when they occur, the rendition of the law
contained in the Statutes at Large controls.4 See United States ___ _____________
Nat'l Bank v. Independent Ins. Agents of Am., Inc., 508 U.S. 439, __________ ____________________________________
448 (1993).
Having made the determination that section 2251(a)
actually contains (and thus is to be read with) a comma after the
phrase "with the intent that such minor engage in," we readily
conclude that the district judge described the essential elements
of the offense correctly in his jury instructions. With the
comma in place, we regard the proper interpretation of the
statute as self-evident. Wherever possible, statutes should be
construed in a commonsense manner, O'Connell v. Shalala, 79 F.3d _________ _______
170, 176 (1st Cir. 1996), honoring plain meaning, In re Thinking ______________
Machines Corp., 67 F.3d 1021, 1024-25 (1st Cir. 1995), and _______________
avoiding absurd or counterintuitive results, Sullivan v. CIA, 992 ________ ___
F.2d 1249, 1252 (1st Cir. 1993).
In this instance the phrase in question, read
naturally, modifies only the transportation category. Any other
reading would defeat the linguistic parallelism which marks
section 2251(a) and would result in a curiously lopsided piece of
____________________
4In all events, recent versions of the United States Code
(as opposed to the United States Code Annotated) include a comma
at the critical place.
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legislation.5 Here, too, a construction consistent with plain
meaning comports with the logic of the statute. One who
persuades a minor to engage in sexually explicit conduct, or who
has a minor assist another person in such conduct, commits an act
which in and of itself is worthy of criminal sanction. By
contrast, one who transports a minor across state lines (no more,
no less) has done nothing inherently wrong unless his intent at
the time is blameworthy. On that basis, the idea that section
2251(a) embodies an additional scienter requirement (having an
intent that the minor thereafter engage in proscribed conduct)
solely with reference to the transportation category is both
easily explicable and eminently sensible. Cf. O'Connell, 79 F.3d ___ _________
at 176 (counselling courts to examine "the statute as a whole,
giving due weight to design, structure, and purpose as well as to
aggregate language").
The history of section 2251(a) supports this
interpretation. Congress amended the law in 1986 to engraft the
transportation category (including the disputed phrase) onto
section 2251(a). Prior to this amendment, the use category, like
the assistance category, required proof only of the three
elements that the judge included in his charge. See Pub. L. 95- ___
225, 2(a), 92 Stat. 7 (1978). To suggest, in the absence of
any confirmatory legislative history, that the 1986 amendment
added a new intent element to both the use and assistance
____________________
5As mentioned earlier, the statute criminalizes three
separate types of conduct, and each category is described in a
clause ending with the words "engage in."
12
categories, instead of merely supplying an additional, self-
contained category, strains credulity. See generally ___ _________
Passamaquoddy Tribe v. State of Me., 75 F.3d 784, 788-89 (1st ___________________ _____________
Cir. 1996) (in interpreting statutes, courts should take into
account preexisting statutory provisions).
To recapitulate, we hold that the phrase "with the
intent that such minor engage in" sexually explicit conduct does
not apply to the use category of section 2251(a). It follows
that the trial court's instructions accurately limned the
essential elements of the offense.
III. III. ____
Conclusion Conclusion __________
We need go no further. Having dispatched the seeming
grammatical anomaly, no serious question remains. It clearly
appears that the appellant was fairly tried and lawfully
convicted. Accordingly, the judgment below must be
Affirmed. Affirmed. ________
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