[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR TH E ELEV ENTH C IRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-10578 October 07, 2003
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-00117-CR-J-NE
UNI TED STA TES OF A MER ICA,
Plaintiff- Appe llee,
versus
KEN NET H M ICHA EL D ODD S,
Defen dant-A ppellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(October 7, 2003)
Before BIRC H, BAR KETT and HILL , Circuit Judges.
BARKE TT, Circuit Judge:
In a jury tr ial, Kenn eth Mic hael Do dds w as foun d guilty o f know ingly
possessing material that contained images of child pornography in violation of 18
U.S.C. § 2252A(a)(5)(B) and knowingly receiving obscene pictures in violation of
18 U.S .C. § 14 62.
Dodds challenges his conviction and sentence on three grounds. First, he
asserts that judgment on both counts should be reversed because the district court
abused its discretio n by allow ing the in troductio n of sixty -six imag es of child
pornography into evidence, which he claims had little probative value and had an
overwhelmingly prejudicial effect. Second, Dodds claims that his conviction under
18 U.S.C. § 14 62 must be reversed becau se the government failed to furnish
evidence that he had received the obscene pictures from the internet, as required by
the statute. F inally, Do dds arg ues that th e district co urt shou ld have s entenced him
under U .S. Sen tencing G uideline ( U.S.S .G.) § 2 G2.4, w hich is the approp riate
sentencing guideline for mere possession of child pornography, rather than
sentence him under U.S.S.G. § 2G2.2, which is the appropriate sentencing
guideline for “receiving, transporting, or advertising material involving the
exploitation of a minor.”
BACKGROUND
Dodd s was sta tioned at th e Redsto ne Ars enal in A labama w hile servin g in
the Un ited States military and Chad Davis w as assign ed to sha re a room with him .
At trial Davis testified that on several occasions, in the middle of the night, he had
2
observ ed Do dds view ing child porno graphy on his co mputer. He dec ided to
investigate Dodds’s computer, which he had permission to use, and found in a
folder named “Mike’s Pics” some of the pictures he remembered seeing Dodds
view o n the com puter. D avis we nt first to h is chaplain and ultim ately to his c hain
of command. The investigation that followed revealed that there were 300
pornographic images on the computers’ hard drive and that Dodds possessed a cd-
rom entitled “Mike’s Pics” that contained 3,400 pornographic photographs. An
expert testified that of the 3,400 photographs, only three contained images that
could b e classified as adult p ornog raphy as oppos ed to child porno graphy .
Dodd s’s friend , Paul L eitner, sug gested in testimon y that ano ther indiv idual,
Todd Shofner, may have been responsible for the presence of child pornography
on Dodds’s computer. Shofner was unavailable to testify because he had died
before the investigation of Dodds began. Leitner testified that he believed that
Shofner had downloaded some pornography on Dodds’s computer and had shown
some of the pictures to Leitner and Dodds. Leitner further testified that he never
saw Shofner downloading child pornography from the internet, but Shoftner had
given h im a cop y of the cd -rom ca lled “Mik e’s Pics,” w hich con tained ch ild
porno graphy .
Leitner a cknow ledged th at Shof ner had “wiped ” Dod ds’s hard drive in
3
January or February of 2001. Therefore, anything that was on Dodds’s hard drive
at the time it was seized later in 2001 would have been put on the computer after
the “wipe.” This alleged wiping of the hard drive in January helps to explain why
there were only 300 images on the computer’s hard drive when it was confiscated
in April, but more than 3,400 on the cd-rom “Mike’s Pics,” which would not have
been “wiped.” One of the items seized from Dodds’s room was a cd
writer/re writer.
To counter the assertion that Dodds had been responsible for downloading,
or at least viewing, all of the images, the government presented evidence that
Shofn er had b een releas ed from training a t Redsto ne Ars onal on approx imately
March 8, 2001 to return to his base in Germany and that pornographic images from
the cd-rom had been viewed as late as March 17, 2001. Additionally, over 200
images of child pornography were accessed on Dodds’s computer in a one week
period in early April 2001. Furthermore, the government argued that special
importance should be assigned the fact that the files were named “Mike’s Pics”
rather tha n “Tod d’s Pics.” 1
During the jury trial, the district court admitted into evidence 66 images of
1
Although Dodds’s full name is “Kenneth Michael Dodds” it appears that most people
knew him by his middle name. At the trial, his friend Leitner consistently referred to him as
“Mike.”
4
child pornography taken from the computer, rejecting Dodds’s objection that the
evidence was cumulative and prejudicial and denying Dodds’s motion for
judgment of acquittal. Dodds was convicted on both counts and the Probation
Office recommended that Dodds be sentenced using U.S.S.G. § 2G2.4. At the
Sentencing Hearing, however, the district court agreed with the government that
U.S.S.G. § 2G2.2, which resulted in a higher sentence, was more appropriate.
DISCUSSION
I. Admission of Evidence
Dodd s first claim s that exp osing th e jury to 6 6 of the 3 ,400 im ages of c hild
porno graphy found in his po ssession was un fairly cum ulative an d prejud icial,
overw helming the evide nce’s min imal pro bative eff ect. As a result, he asserts that
both counts of his conviction should be reversed since the evidence should have
been excluded under Federal Rule of Evidence (“Fed. R. Evid.”) 403.2
This Court reviews a district court's evidentiary rulings for a clear abuse of
discretion. United States v. Tinoco, 304 F.3d 1088, 1119 (2002). We w ill reverse a
2
Fed. R. Evid. 403 provides:
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.
Fed. R. Evid. 403.
5
district court's evidentiary rulings only if the resulting error affected the
defend ant's substantial righ ts. Id. (citing United States v. Hands, 184 F.3d 1322,
1329 (11th Cir. 1999)). Although we recognize that Fed. R. Evid. 403 permits the
district cou rt to exclu de other wise rele vant evid ence “if its p robative value is
substantially outweighed by the danger of unfair prejudice,” Fed. R. Evid. 403, we
have also recognized that Rule 403 is “‘an extraordinary remedy which the district
court should invoke sparingly,’ and ‘[t]he balance . . . should be struck in favor of
admissibility.’” Id. at 1120 (citing United States v. Elkins, 885 F.2d 775, 784
(11th Cir. 1989). Thus, we have held that “[i]n reviewing issues under Rule 403,
we loo k at the ev idence in a light mo st favora ble to its ad mission , maxim izing its
probative value and minimizing its undue prejudicial impact.” Id. (internal
citations omitted). However, limits do exist regarding the quality and quantity of
evidenc e that may be introd uced. Rule 403 demands a balancing approach
betwee n the deg rees of p robative value tha t a piece of evidenc e has and its
prejudic ial effect. Old Chief v. United States, 519 U.S. 172 (1997). 3
3
Old Chief described the following balancing tests:
On objection, the court would decide whether a particular item of evidence raised
a danger of unfair prejudice. If it did, the judge would go on to evaluate the
degrees of probative value and unfair prejudice not only for the item in question
but for any actually available substitutes as well. If an alternative were found to
have substantially the same or greater probative value but a lower danger of
unfair prejudice, sound judicial discretion would discount the value of the item
first offered and exclude it if its discounted probative value were substantially
outweighed by unfairly prejudicial risk.
6
Dodds argues that the district court erred in app lying such a balancing test
relying on two cases from other circuits to support his claim, both of which we find
inapplicable and easily distinguishable. First, the challenged evidence here is not
extrinsic to the crime charged or more violent than the actual pornography which
was charged as was the case in United States v. Grimes, 244 F.3d 375 (5th Cir.
2000). Here it constituted a small portion (66 pictures) of the thousands of actual
child pornography which Dodds was convicted of possessing (3,400 pictures) and
was not extrinsic, but rather a part of the actual pornography possessed.
Nor do we find United States v. Merino-Balderrama, 146 F.3d 758 (9th Cir.
1998), applicable. In that case the Ninth Circuit determined that the evidence
should have been excluded because it was too prejudicial in light of evidence that
the defen dant had simply “stu mbled u pon” th e porno graphic films in a b riefcase in
an abandoned farmhouse and there was no evidence that he had ever watched them
or knew their con tent. Id. at 762-63. Dodds argues that his case parallels Merino-
Balderrama’s, asserting that like Merino-Balderrama, he never saw any of the
pornography on his computer because Shofner put the images there undetected and
in secret. Belying Dodds’s claim, however, is the government’s evidence of
Dodd s’s guilt, w hich inclu ded the e ye-witn ess testimo ny of D odds’s r oomm ate
Old Chief, 519 U.S. at 182-83.
7
who observed Dodds looking at the pornographic pictures on his computer, the fact
that child pornographic images continued to be accessed after Shofner had left the
base, and the fact that the images were placed into a file and/or a cd-rom named
after Dodds. This case is completely inapposite to Merino-Balderrama.
On the other hand, in United States v. Becht, 267 F.3d 767, 774 (8th Cir.
2001) , a case alm ost exactly like this on e, the cou rt refused to revers e a child
porno graphy convictio n on the groun ds that the district cou rt had ab used its
discretion by allow ing the g overnm ent to ente r thirty-nin e child po rnogra phic
images in to eviden ce. See Becht, 267 F.3d at 770, 774. Becht had 11,000
porno graphic images s tored on his com puter, hu ndreds of wh ich wer e child
porno graphy . Id. at 769. B echt con ceded th at the imag es constitu ted child
pornography but argued that he did not know his website contained such images
because he had a ctivated a “r obot pr ogram ” to dissem inate the p ornog raphic
images from his website and wrote a program that automatically sorted incoming
images in to catego ries according to th eir file nam e. Id. The government argued
that because the automatic sorting system did not function until after many of the
pictures had been filed, Becht must have sorted the pictures by hand and was
therefor e aware of their co ntent. Id. Similarly, Dodds claims that he did not know
the pictures were on his computer, but there is evidence that he placed them in a
8
file named “Mike’s Pics.”
In refusing to reverse the district court for abuse of discretion, the Becht
court noted that admitting the pictures served several probative purposes, such as
whether the images actually constituted child pornog raphy, 4 and whether the
defend ant wo uld hav e know n that they were ch ild porn ograph y. Id. at 772. Thus,
the “multiple utility” rationale that the Supreme Court applied in Old Chief
militated to ward in clusion. Id. (“The [Supreme] Court noted that evidence may be
valuable not only for its relevance to a single element, but also because it may at
once prove multiple elements or embolden a jury to infer guilt by strengthening the
evidentiary picture as a whole.”). The Eighth Circuit also observed that the trial
court had taken “pains to limit the prejudicial effect of the images.” Id. at 774.
During voir dire, prospective jurors were warned of the nature of the images and
the cour t excused for caus e three jur ors wh o stated th at they “w ould no t be able to
view such images without prejudicing the defendant.” Id. Furthermore, the court
noted that “[o]nly thirty-nine of the hundreds of illegal images discovered were
admitted.” Id.
As in Becht, the pho tograph s in this cas e are pro bative fo r several r easons:
4
In Becht the defendant was willing to concede that the images were in fact child
pornography.
9
they show that the images actually were ch ild pornography, 5 they tend to show that
Dodds knew the images were child porno graphy, 6 they infer intent on Dodds’s part
to collect such pornography, and they also are relevant in proving the jurisdictional
element of 18 U.S.C. § 1462.7 Also, as in Becht, prospective jurors were cautioned
during voir dire that they would see photographs depicting child pornography and
the cour t exclude d, for cau se, jurors who in dicated th at they w ould be unable to
reach a fa ir verdict w hen face d with s uch evid ence. Fin ally, in this ca se, as in
Becht, only a very small proportion of images found in the defendant’s possession
were sh own to the jury.
Havin g carefu lly consid ered this r ecord, w e find no abuse o f discretio n in
the admission of the evidence here. Although in another case such images might be
deemed unfairly prejudicial, under the facts of this case, where the images have
multiple probative value and the district court has taken precautions to prevent
5
The Supreme Court’s opinion in Ashcroft v. Free Speech Coalition, 122 S.Ct. 1389
(2002), makes a close analysis of the evidence to determine whether the evidence actually
constituted child pornography more necessary. It is clear from that opinion that the government
bears the burden of proving that the child pornography actually depicts real children, rather than
virtual images of children or adults who look like children. Id. 1404-05.
6
Testimony from Dodds’s wife and his friend Mr. Lietner make clear that Dodds viewed
adult pornography on his computer. Thus, it was reasonable for the prosecution to show that
Dodds would have been aware that this was not adult pornography.
7
Experts testified that the girls in the pictures were known to live across several states
and outside the country. This evidence helps prove that the pictures were acquired over the
internet.
10
unfair prejudice, and where only 66 of 3,400 images were shown to the jury, the
district court did not abuse its discretion.
II. Sufficiency of Evidence for Conviction under 18 U.S.C. § 1462
In order to convict under 18 U.S.C. § 1462’s second paragraph, the
government must prove that a defendant “knowingly takes or receives, from such
express company or other common carrier or interactive computer service . . . any
matter or thing the carriage o r impor tation of w hich is he rein mad e unlaw ful . . .”
18 U.S .C. § 14 62 (20 03). “Inte ractive co mputer services” has been defined to
include th e internet. 8 Dodds asserts that the government failed to prove that he
received any of the child pornography from the internet or any other sources
described in 18 U.S.C. § 1462 and thus his conviction on this charge must be
vacated.
A sufficiency of evidence challenge is a question of law that we subject to de
novo review . See United States v. Hunerlach, 197 F.3d 1059, 1068 (11th Cir.
1999) (citing United States v. Cannon, 41 F.3 d 1462 , 1465 ( 11th C ir. 1995 )).
8
The term "Interactive Computer Service" is defined in Title 47, U.S.C. § 230(f)(2) of the
Communications Act of 1934, which states:
[t]he term "interactive computer service" means any information service, system,
or access software provider that provides or enables computer access by multiple
users to a computer server, including specifically a service or system that
provides access to the Internet and such systems operated or services offered by
libraries or educational institutions.
Pub.L. 105-277, Title XIV, § 1404(a)(2), Oct. 21 1998, 112 Stat. 2681- 739,
redesignated former subsec. (e) as (f).
11
However, this court views the evidence in the light most favorable to the
Gove rnmen t. Id. (citing Glasser v. United States, 315 U.S. 60, 80 (1942)).
We have previously held that circumstantial evidence may be used to prove
that porn ograph y was o btained th rough the intern et. United States v. Hersh, 297
F.3d 1233, 1254 n.31 (11th Cir. 2002). In this case, the government presented
evidenc e that a nu mber o f the pho tograph s on D odds’s c ompu ter were actually
available a nd freq uently trad ed on th e internet. S ome of the childr en that w ere in
the 66 images entered into evidence were proven to be in locations as varied as
Missouri, Florida, Pennsylvania, and the United Kingdom. There was no evidence
that Dodds performed the difficult task of hand collecting the images. The
government also showed that Dodds had access to the internet and was familiar
with using it (he had been “caught” by his wife viewing adult pornography sites on
their home computer). Under our standard of review, we find this evidence
sufficient circumstantial evidence to support the contention that Dodds had
obtained at least som e of the p ictures ov er the inter net.
III. Application of Sentencing Guidelines
Dodds claims that the trial court improperly sentenced him under U.S.S.G.
§ 2G2 .2, whic h he asse rts requir es proo f that he in tended to “traffic” the child
pornography, when he should have been sentenced under § 2G2.4, which punishes
12
simple possession.9 If sentenced as he advocates, Dodds’s base offense level
would start two points lower, and there would be no four level increase for
possession of sadomaso chistic pictures.10 He therefore asks the Court to remand
for resentencing under § 2G2.4. We review de novo the question of whether the
district cou rt applied the corre ct sentenc ing guid eline. United States v. Williams,
340 F.3d 1231, 1240 (11th Cir. August 5, 2003).
Dodds was convicted of violating both 18 U.S.C. § 2252A(a)(5)(B) and 18
U.S.C . § 1462 , and the d istrict cour t sentence d him p ursuan t to the § 1 462 ch arge.
When convicte d of § 1 462, a d efendan t should be senten ced pur suant to U .S.S.G . §
2G3.1, which p rovides:
If the offense involved transporting, distributing, receiving,
possessing, or advertising to receive material involving the sexual
exploitation of a minor, apply § 2G2.2 (Trafficking in Material
Involving the Sexual Exploitation of a Minor; Receiving,
Transporting, Shipping, or Advertising Material Involving the Sexual
Exploitation of a Minor; Possessing Material Involving the Sexual
Exploitation of a Minor with Intent to Traffic) or § 2G2.4 (Possession
of Ma terials De picting a M inor En gaged in Sexua lly Explic it
9
Both U.S.S.G. § 2G2.2 and § 2G2.4 have recently been amended. The general rule is
that a defendant is sentenced under the version of the Guidelines in effect on the date of
sentencing, barring any ex post facto concerns. United States v. Bailey, 123 F.3d 1381, 1403
(11th Cir. 1997). Thus, the applicable guidelines are those that were in effect on the date of
sentencing, and not the amended guidelines. In this discussion, we refer to the guidelines as they
stood before they were amended.
10
U.S.S.G. § 2G2.2(b)(3) provides for a 4 level increase “[i]f the offense involved
material that portrays sadistic or masochistic conduct or other depictions of violence.” There
appears to be no dispute that Dodds’s did have such images in his possession.
13
Conduct), as appropriate.
U.S.S.G. § 2G3.1(c)(1). Although the cross-reference in § 2G3.1 makes clear that
either § 2G2.2 or § 2G2.4 should be applied if the offense is one “involving the
sexual exploitation of a minor,” it does not provide much guidance as to which
guidelin e should be applie d.
The Government argues that since U.S.S.G. § 2G2.2 punishes “receiving”
child pornography, and since Dodds was convicted under 18 U.S.C. § 1462
precisely because it was shown tha t he “received” child pornography, 11 § 2G2 .2 is
the appropriate sentencing guideline. Dodds, on the other hand, argues that the
statutory in tent of § 2 G2.2 w as to pun ish “receiv ing” on ly when porno graphy is
received with the intent to traffic. In support of this claim, he notices that the first
clause of the title (“Trafficking in Material Involving the Sexual Exploitation of a
Minor”) deals explicitly with trafficking; every word in the second clause of the
title (“Receiving, Transporting, Shipping, or Advertising Material Involving the
Sexua l Explo itation of a Mino r”) excep t for “receiv ing” inv olves an act norm ally
related to trafficking; and the final clause of the title (“Possessing Material
Involv ing the S exual Exploitatio n of a M inor with Intent to Traffic” ) once ag ain
11
18 U.S.C. § 1462 requires a showing that the defendant “knowingly takes or receives, . .
. any matter of thing the carriage or importation of which is herein made unlawful . . .” 18 U.S.C.
§ 1462. In Section II of this discussion we agreed that there was sufficient evidence to support
of finding that Dodds did “receive” the prohibited images.
14
deals exp licitly with in tent to traff ic. Dod ds furth er asserts th at if “receivin g” in
the title is not construed as “receiving with intent to traffic,” then virtually every
case of child pornography would require sentencing under § 2G2.2 because §
2G2.4 would only be applicable in the rare (if possible) case that a person
possess ed child p ornog raphy w ithout ev er “receivin g” it.
We agree with Dodds that, at least from the title, it is not clear whether the
term “receiving” in § 2G2.2’s title makes it the appropriate guideline to apply in a
case of mere receipt. A look at the text of these guidelines weighs in favor of
Dodds’s argument that § 2G2.2 was intended to apply where the government has
shown that the defendant had received with intent to traffic. The cross-reference
of § 2G2.4 explains that the sentencing court should apply § 2G2.2 “[i]f the
offense involved trafficking in material involving the sexual exploitation of a
minor (including receiving . . . material involving the sexual exploitation of a
minor with intent to tra ffic). . . .” U.S .S.G. § 2G2.4 (c)(1) (e mphas is added ). This
cross-reference indicates § 2G2.2 aims at punishing receiving with intent to traffic.
Dodd s finds fu rther sup port for his view in the op inion of the Sev enth
Circuit in United States v. Sromalski, 318 F.3d 748 (7th Cir. 2003), in which that
circuit addressed the similar question of whether “all instances of ‘receiving’ that
can be proved in a possession [of child pornography] prosecution require the
15
application of [§ 2G2.4’s cross-reference].” Sromalski, 318 F.3d at 751. In
determining that the application of § 2G2.4’s cross-reference requires that “the
government must show receipt . . . with intent to traffic,” the Seventh Circuit relied
on the h istory of § 2G2.4 . Originally, the Guidelines only contained § 2G2.2 and
there was no § 2G2.4. When § 2G2.4 was added by way of amendment, the
Senten cing Co mmissio n explain ed in the A mendm ent:
This amendmen t inserts an additional guideline at § 2G2.4 to address
offenses involving receipt or possession of materials depicting a
minor engaged in sexually explicit conduct, as distinguished from
offenses involving trafficking in such material, which continue to be
covered under § 2G2.2. Offenses involving receipt or transportation of
such m aterial for th e purpo se of traff icking ar e referen ced to § 2 G2.2
on the basis of the underlying conduct (subsection (c)(2)).
U.S.S .G. app . c amend . 372 (2 003) (e mphas is added ).
Considering that both the plain text and the history of the Guidelines
strongly indicate that § 2G2.2 was meant to punish crimes related to the trafficking
of child p ornog raphy, w hile § 2G 2.4 is rese rved fo r punish ing thos e who merely
possess child pornograph y, we hold that when a d istrict court applies §
2G3.1(c)(1)’s cross-reference, sentencing is appropriate under § 2G2.2 only if the
government can show receipt with the intent to traffic.12
12
We further note that merely showing that defendant was in possession of a large
number of illegal images will usually not be sufficient to imply an intent to traffic. The recent
Amendment to § 2G2.4 increases the sentencing level for offenders who have a greater number
16
Having determined that the government must prove that Dodds received
the child pornography with intent to traffic for § 2G2.2 to apply through
2G3.1 (c)(1)’s c ross-reference, w e must th en determ ine wh ether the f acts of this
case support such a finding. Dodds asserts that the government did not provide a
“shred of evidence, and no finding” that he had “distributed the images to anyone
else” and that there was no evidence presented of any uploading, selling, trading or
any sort. Although we cannot agree with the Defendant that there was “not a shred
of evidence” that he intended to or eng aged in trafficking the images, 13 we are not
prepared, in the first instance, to determine Dodds’s appropriate sentence after
resolvin g the def initional q uestion a bove. T hus, w e reman d for the district cou rt to
condu ct a new sentencin g hearin g to con sider evid ence and argum ent of co unsel to
determine whether sufficient evidence exists to support the conclusion that Dodds
had “received” the pornography with intent to traffic,14 or otherwise determine the
appropriate guidelines sentence.
of images. U.S.S.G. § 2G2.4 (2003). Thus, the current version of § 2G2.4 provides for
punishing violators who “possess” a large quantity of child pornography.
13
There was testimony suggesting that Dodds’s cd-rom, “Mike’s Pics,” had made its way
to his friend, Lietner and an FBI agent testified that child pornography was often “traded” over
the internet.
14
C.f. United States v. Bender, 290 F.3d 1279, 1281 (11th Cir. 2002) (holding that
evidence that defendant had sent 121 unsolicited emails containing child pornography and an
admission to sending at least 10 such emails was sufficient evidence to constitute trafficking of
child pornography).
17
CONCLUSION
Therefore, we AFFIRM the conviction on both counts. However, we
VAC ATE and RE MA ND th e case to th e district co urt for re sentencin g in
accorda nce with this opin ion.
18