[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 08, 2002
THOMAS K. KAHN
No. 00-16094 CLERK
D. C. Docket No. 98-08169 CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEREMY BENDER,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Florida
(May 8, 2002)
Before ANDERSON, Chief Judge, DUBINA and MARCUS, Circuit Judges.
DUBINA, Circuit Judge:
This is a child pornography case. A federal grand jury charged Appellant
Jeremy Bender (“Bender”) in a three-count federal indictment with (1) knowingly
transporting, by computer, visual depictions of a minor engaging in sexually
explicit conduct, in violation of 18 U.S.C. § 2252(a)(1) (Counts I and II); and (2)
knowingly possessing a computer disk which contained three or more images
transported by computer in interstate commerce and which depicted a minor
engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252A(a)(5)(B)
(Count III). A jury found Bender guilty on all three counts. The district court
sentenced him to 160 months imprisonment on Counts I and II, and 60 months
imprisonment on Count III, all to be served concurrently. Bender appeals his
convictions and sentences, and we affirm.
I. BACKGROUND
Several America OnLine (“AOL”) subscribers complained to AOL about the
receipt of different inappropriate e-mails from someone using the screen name
DMAN665580 (“DMAN”). These inappropriate e-mails sent by DMAN to 121 e-
mail addresses included two pornographic images. The first image depicted a
minor female nude from the waist down sitting with her legs open and spreading
her genitalia. The second image depicted a naked minor female leaning against a
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counter top. AOL provided this information to the Florida Department of Law
Enforcement (“FDLE”) in Broward County, Florida.
Pursuant to subpoenas to AOL and BellSouth, FDLE received information
that revealed that the person sending the e-mails used a computer located at 1734
22nd Avenue North in Lake Worth, Florida. Agents obtained a search warrant, and
U.S. Customs Agent Gregory Stine (“Agent Stine”), FDLE Special Agent Don
Condon (“Agent Condon”), and other members of the Law Enforcement Against
Child Harm Task Force (“LEACH”) conducted a search of the home at that
address. Bender’s grandmother, Mary Bender, her partner, Shirley Hill, and
Bender were in the house at the time of the search. After acknowledging that they
had an AOL account, Bender told Agent Condon that he used the screen name
DMAN.
Agents read Bender his Miranda1 rights and he signed a written waiver of
those rights. He told Agent Condon that there were two computers in the house, a
Packard Bell and an Apple Macintosh. Bender stated that he used the Packard Bell
to access AOL and the Apple Macintosh to play games. Bender confirmed that he
was the only person who had accessed AOL during the previous 90-day period.
Bender stated that people had sent him sexually explicit pictures approximately 20
1
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966).
3
times, and that he had sent sexually explicit pictures approximately 10 to 20 times.
He further stated that some of the pictures he received portrayed children
approximately 10 years old. He assured Agent Condon that he was responsible for
all of the trading of the pictures on-line. The agents seized both computers.
At trial, Dr. Dory Solomon (“Dr. Solomon”), Assistant Professor of
Pediatrics at the University of Miami School of Medicine, testified as an expert
witness in the area of pediatrics, particularly in the determination of children’s
ages. Dr. Solomon examined 16 pictures found on the hard drive of the Packard
Bell computer that agents had seized at Bender’s residence. The record shows that,
with one possible exception, each of these pictures portrayed at least one female
child engaged in sexually explicit conduct. The record also shows that seven of the
female children and one male child appeared to be prepubescent or under the age
of 12. One of the pictures portrayed an adult male penis penetrating a
preadolescent female’s vagina. Dr. Solomon stated that this female appeared to be
10 years old. Dr. Solomon noted that the photographs generally portrayed naked
children, some orally or digitally stimulating the genitalia of adult males, some
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digitally stimulating their own genitalia, and some displaying their own genitalia.
Dr. Solomon testified that the photographs appeared to portray real children.2
Glenn Darkins (“Darkins”) testified at trial that he met Bender while they
were both in prison. According to Darkins, Bender told him that on two
consecutive Sundays, he received two e-mails containing child pornography.
When Darkins said to Bender, “you knew you were getting child pornography,”
Bender smiled. (R. Vol. 9, p. 510.) Bender told Darkins that he also received
many other e-mails containing child pornography mixed with adult pornography.
Joe Menavich (“Menavich”), the manager in charge of AOL’s Securities
Investigation Graphic Review Team, explained the transmission of e-mails and the
identification process for screen names. He testified that when an AOL subscriber
sends an e-mail to another AOL subscriber, the e-mail always travels through
AOL’s server in Northern Virginia en route to the recipient. Menavich identified
the e-mail sent by someone using the screen name DMAN, and the images
attached, which started the investigation. He also identified other e-mails
2
In Ashcroft v. Free Speech Coalition, 122 S.Ct. 1389, (U.S. April 16, 2002) (No. 00-795),
the United States Supreme Court held that the prohibitions of 18 U.S.C. §§ 2256(8)(B) and
2256(8)(D) are overbroad and unconstitutional. These provisions are not at issue in the present case.
Moreover, because there is sufficient evidence that the images portray real children, we conclude
that Free Speech Coalition is not pertinent to the issues we must decide.
5
containing child pornography which Bender received and downloaded to the
Packard-Bell hard drive.
In his defense, Bender called his grandmother, her partner, and two friends
to testify. Additionally, Dr. Sam Hsu (“Dr. Hsu”), an Associate Professor in the
Department of Computer Science and Engineering at Florida Atlantic University,
testified for Bender as an expert witness in the field of computer science. From his
review of the records from Bender’s computers, Dr. Hsu concluded that the disk
integrity was good, but that the evidence of exactly who was using the screen name
DMAN was not strong enough to substantiate that it was Bender. He also testified
that the name of the file was not always indicative of what was in the file.
II. ISSUES
(1) Whether the district court abused its discretion in permitting Dr.
Solomon to testify as an expert in the determination of children’s ages.
(2) Whether the evidence was sufficient to establish that the computer
images portrayed actual children.
(3) Whether the district court erred in instructing the jury that it was not
required to find an intent to affect interstate commerce.
(4) Whether the district court abused its discretion in denying Bender’s
motion for a mistrial or failing to grant Bender’s motion for a new trial.
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(5) Whether a delay in the indictment caused the suppression of exculpatory
evidence, requiring reversal of Bender’s convictions.
(6) Whether this court will consider Bender’s claim of ineffective assistance
of counsel on appeal.
(7) Whether the district court erred in applying United States Sentencing
Guidelines (“USSG”) § 2G2.2, rather than USSG § 2G2.4, because Bender sent
and received pornographic images by computer.
(8) Whether the district court erred in applying the two-level enhancement
under USSG § 2G2.2(b)(1) because the photographs depicted prepubescent minors
under the age of 12.
(9) Whether the district court erred in applying the four-level enhancement
under USSG § 2G2.2(b)(3) because the photographs depicted sadistic, masochistic,
or other violent conduct.
(10) Whether the district court erred in applying the five-level enhancement
under USSG § 2G2.2(b)(2) because Bender distributed photographs for pecuniary
or other gain.
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(11) Whether Bender’s sentence violates Apprendi3 because his total
sentence exceeds the statutory maximum based upon enhancements not included in
the indictment.
III. STANDARDS OF REVIEW
The district court’s finding that a witness is qualified to render an expert
opinion is a matter within the judge’s broad discretion and will not be reversed
unless it is manifestly erroneous. United States v. Carrazana, 921 F.2d 1557, 1567
(11th Cir. 1991).
This court reviews de novo whether the record contains sufficient evidence
to support a jury’s guilty verdict. United States v. Calderon, 127 F.3d 1314, 1324
(11th Cir. 1997). We view the evidence in the light most favorable to the
government, “with all reasonable inferences and credibility choices made in the
government’s favor.” Id.
When a defendant does not move the district court for a judgment of
acquittal at the close of the evidence, we may reverse the conviction only to
prevent a manifest miscarriage of justice. United States v. Hamblin, 911 F.2d 551,
556-57 (11th Cir. 1990). This standard requires the appellate court to find that the
evidence on a key element of the offense is so tenuous that a conviction would be
3
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
8
shocking. Id. at 557 n.2 (quoting United States v. Tapia, 761 F.2d 1488, 1491-92
(11th Cir. 1985)).
We conduct a de novo review of the district court’s jury instructions when
determining “whether they misstate the law or mislead the jury to the prejudice of
the objecting party.” United States v. Grigsby, 111 F.3d 806, 814 (11th Cir. 1997).
We give the district court wide discretion as to the style and wording employed in
the instructions, ascertaining that the instructions accurately reflect the law. United
States v. Starke, 62 F.3d 1374, 1380 (11th Cir. 1995).
The trial judge has discretion whether to grant a mistrial “since he [or she] is
in the best position to evaluate the prejudicial effect of a statement or evidence on
the jury.” United States v. Mendez, 117 F.3d 480, 484 (11th Cir. 1997) (quoting
United States v. Satterfield, 743 F.2d 827, 848 (11th Cir. 1984)). When a district
court gives a curative instruction, the reviewing court reverses “only if the
evidence ‘is so highly prejudicial as to be incurable by the trial court’s
admonition.’” United States v. Lozano-Hernandez, 89 F.3d 785, 789 (11th Cir.
1996) (quoting United States v. Funt, 896 F.2d 1288, 1295 (11th Cir. 1990)).
This court generally reviews for abuse of discretion a district court’s denial
of a motion for a new trial based on a Brady4 violation. United States v. Kersey,
4
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
9
130 F.3d 1463, 1465 (11th Cir. 1997). “If, however, the defendant did not
precisely articulate a Brady violation in his or her motion for new trial, this court
need only conduct a plain error review.” Id.
We will not generally consider claims of ineffective assistance of counsel
raised on direct appeal where the district court did not entertain the claim nor
develop a factual record. United States v. Khoury, 901 F.2d 948, 969 (11th Cir.
1990), modified on other grounds, 910 F.2d 713 (11th Cir. 1990). If the record is
sufficiently developed, however, this court will consider an ineffective assistance
of counsel claim on direct appeal. United States v. Camacho, 40 F.3d 349, 355
(11th Cir. 1994). “Whether a criminal defendant’s trial counsel was ineffective is a
mixed question of law and fact, subject to de novo review.” Nixon v. Newsome,
888 F.2d 112, 115 (11th Cir. 1989).
We review a sentencing court’s findings of fact for clear error and review
the district court’s application of the sentencing guidelines to the facts de novo.
United States v. Tucker, 136 F.3d 763, 764 (11th Cir. 1998).
IV. DISCUSSION
After reviewing the record, reading the parties’ briefs, and having the benefit
of oral argument, we conclude that there is no merit to any of the arguments
Bender presents in this appeal and summarily affirm Bender’s convictions and
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sentences as they pertain to issues 1-5, 8, and 11.5 We also decline to consider
Bender’s claim of ineffective assistance of counsel on direct appeal. We do,
however, feel compelled to discuss issues 7, 9, and 10.
A. USSG § 2G2.2 v. § 2G2.4
Bender argues on appeal that the district court erred in applying USSG §
2G2.2 (trafficking in material involving the sexual exploitation of a minor), rather
than Section 2G2.4 (possession of materials depicting a minor engaged in sexually
explicit conduct), which addresses the conduct the government charged in Counts 1
and 2. Bender asserts that the district court should not have applied to his sentence
the enhancements for violence and distribution for gain under Section 2G2.2
because he merely possessed, as opposed to distributed, child pornography.
In the district court, Bender raised an issue regarding whether Section 2G2.2
applied, but he did not present the specific issue of whether Section 2G2.4 should
apply rather than Section 2G2.2. We review this issue for plain error only because
Bender failed to present the issue in the district court. United States v. Stevenson,
68 F.3d 1292, 1294 (11th Cir. 1995). “For the court to correct plain error: (1) there
must be error; (2) the error must be plain; and (3) the error must affect substantial
rights.” Id. (citation omitted).
5
See 11th Cir. R. 36-1.
11
The guideline applicable to possession of child pornography is USSG §
2G2.4. Section 2G2.4(c)(2) instructs the sentencing court to apply Section 2G2.2
if the offense involved “trafficking in material involving the sexual exploitation of
a minor (including receiving, transporting, shipping, advertising, or possessing
material involving the sexual exploitation of a minor with intent to traffic) . . . .”
USSG § 2G2.4(c)(2). We conclude that the district court properly sentenced
Bender under Section 2G2.2 because the evidence presented at trial demonstrated
that he was more than a mere possessor of pornography. The evidence showed that
Bender received and transmitted the child pornography. Agent Condon testified
that when questioned, Bender admitted that people sent him numerous child
pornographic images via the computer and that he was responsible for the trading
of pictures on-line. Moreover, Bender’s AOL on-line account records showed that
he had sent, via the Internet, child pornographic images to other on-line users.
In United States v. Johnson, 221 F.3d 83 (2d Cir. 2000), cert. denied, 533
U.S. 953, 121 S.Ct. 2599, 150 L.Ed.2d 757 (2001), the Second Circuit addressed
an issue similar to the one raised here. In ruling that the district court correctly
applied Section 2G2.2, the Johnson court pointed to the fact that the defendant had
admitted to possessing numerous computer images of minors engaging in sexually
explicit conduct and had conceded that he did “send and receive” child
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pornography. Id. at 98. The government presented similar evidence against
Bender which demonstrated that he admitted to law enforcement officers that the
child pornography found on the computer was his and that he sent and received
child pornography. Because we conclude that the evidence presented at trial
supported the district court’s application of Section 2G2.2, there is no plain error.
B. Four-Level Enhancement Under Section 2G2.2(b)(3).
Bender contends that the district court erred in applying the four-level
enhancement under Section 2G2.2(b)(3) because it found that the offense involved
material that portrayed sadistic conduct. Bender argues that the child pornography
material that he possessed was not violent in nature and did not include any sadistic
or masochistic images. The government responds that the photographs portrayed
conduct that would have been painful to the minor child, including vaginal or anal
penetration of a minor by an adult male. This conduct qualifies as “sadistic” under
Section 2G2.2(b)(3) and thus warrants the four-level enhancement.
In United States v. Garrett, 190 F.3d 1220 (11th Cir. 1999), we addressed
the issue of what constitutes sadistic images under Section 2G2.2(b)(3). We ruled
that a photograph is sadistic within the meaning of Section 2G2.2(b)(3) when it
depicts the “subjection of a young child to a sexual act that would have to be
painful.” Id. at 1224. This includes photographs of very young children being
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vaginally and anally penetrated by adult males. Id. Having reviewed the computer
images in this case, we conclude that the district court properly applied the four-
level enhancement under Section 2G2.2(b)(3) because several of the pornographic
photographs clearly depict “the subjection of a young child to [sic] sexual act[s]
that would have to be painful.” Id. Pursuant to Garrett, Bender’s conduct is
sufficient to warrant the enhancement.
C. Five-Level Enhancement Under Section 2G2.2(b)(2)
Bender argues that the district court erred in applying a five-level
enhancement under Section 2G2.2(b)(2) (enhancement for distribution for gain).
Specifically, Bender contends that the district court should not have applied
Section 2G2.2(b)(2) because the government did not demonstrate that he
distributed the pornography for “pecuniary gain” or “valuable gain” and that there
was “no real proof of distribution.” (Appellant’s Brief at 61.)
The district court, relying on United States v. Probel, 214 F.3d 1285 (11th
Cir. 2000), cert. denied, 531 U.S. 939, 121 S.Ct. 331, 148 L.Ed.2d 266 (2000),
overruled Bender’s objection to the Section 2G2.2(b)(2) enhancement because the
guidelines did not require any pecuniary or other gain. Under the 1999 version of
Section 2G2.2(b)(2), this ruling would have been correct. The government
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concedes, however, that the district court applied the wrong version of the
sentencing guidelines for this enhancement.
Before the Sentencing Commission amended the guidelines in 2000, Section
2G2.2(b)(2) stated that “[i]f the offense involved distribution, increase by the
number of levels from the table in [Section] 2F1.1 corresponding to the retail value
of the material, but in no event by less than 5 levels.” USSG § 2G2.2(b)(2) (1999).
Because the district court sentenced Bender on November 3, 2000, however, the
district court should have applied the amended 2000 version of Section
2G2.2(b)(2). United States v. Marin, 916 F.2d 1536, 1538 (11th Cir. 1990) (stating
that the sentencing court must employ the guidelines in effect at the time of the
sentencing hearing). Pursuant to the amended version of Section 2G2.2(b)(2), the
district court should increase the base offense level for trafficking in child
pornography by five-levels if the offense involved “[d]istribution for the receipt, or
expectation of receipt, of a thing of value, but not for pecuniary gain . . . .” Thus,
under the version of Section 2G2.2(b)(2) in effect at the time of Bender’s
sentencing, enhancement was warranted when the distribution was for the receipt
or expectation of receipt of a thing of value.
Although it is clear that the district court applied the wrong version of
Section 2G2.2(b)(2), we conclude that the amended Section 2G2.2(b)(2) would
15
support an enhancement in this case. Joining several of our sister circuits, we hold
that when a defendant trades child pornography in exchange for other child
pornography, the defendant has engaged in “distribution for the receipt, or
expectation of receipt, of a thing of value” as provided in the 1999 version of
USSG § 2G2.2(b)(2).6 Here, the government presented sufficient evidence at trial
to support a finding that Bender sent child pornography so that he would receive
other child pornography in exchange. Thus, Bender distributed the child
pornography expecting to receive a thing of value – other child pornography – and
this conduct justified the district court’s imposition of the five-level enhancement
under the guideline. Because the district court’s application of the incorrect
version of Section 2G2.2(b)(2) is otherwise supported by the record, we uphold it
in this case. United States v. Villarino, 930 F.2d 1527, 1529 (11th Cir. 1991)
(stating that sentencing court’s error in making findings did not preclude
6
Other circuits have held that trading in child pornography constitutes distribution for a thing
of value warranting the five-level distribution enhancement under USSG § 2G2.2(b)(2). See United
States v. Brown, 15 Fed. Appx. 180 (4th Cir. 2001); United States v. Coggins, 15 Fed. Appx. 164
(4th Cir. 2001), cert. denied, ___U.S. ___, 122 S.Ct. 1120 (2002); United States v. Blair, 16 Fed.
Appx. 592 (9th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 384 (2001); United States v. Lyckman,
235 F.3d 234, 240 (5th Cir. 2000), cert. denied, 532 U.S. 986, 121 S.Ct. 1634, 149 L.Ed.2d 494
(2001); United States v. Burnette, 234 F.3d 1270 (6th Cir. 2000) (unpublished table decision), cert.
denied, 531 U.S. 1201, 121 S.Ct. 1210, 149 L.Ed.2d 123 (2001); United States v. Horn, 187 F.3d
781, 791 (8th Cir. 1999), cert. denied, 592 U.S. 1029, 120 S.Ct. 1442, 146 L.Ed.2d 330 (2000);
United States v. Laney, 189 F.3d 954, 961 (9th Cir. 1999).
16
meaningful appellate review where evidence clearly supported court’s application
of the guidelines).
For the foregoing reasons, we affirm Bender’s convictions and sentences.
AFFIRMED.
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