F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 9 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 00-4170
THOMAS JARED PEARL,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 99-CR-21-ST)
Elizabethanne C. Stevens, Assistant United States Attorney, (Paul M. Warner,
United States Attorney and Stephanie D. Thacker, Trial Attorney, U.S.
Department of Justice, Child Exploitation and Obscenity Section, on the briefs),
Salt Lake City, Utah, for Plaintiff - Appellee.
Jenine M. Jensen, Assistant Federal Public Defender (and Michael G. Katz,
Federal Public Defender, on the briefs), Denver, Colorado, for Defendant -
Appellant.
Before, KELLY, PORFILIO, and BRISCOE, Circuit Judges.
KELLY, Circuit Judge.
Defendant-Appellant Thomas Jared Pearl was convicted in May 2000 of (1)
two counts of transporting child pornography by computer and transporting child
pornography by airplane in violation of 18 U.S.C. § 2252A(a)(1), (2) one count of
possession of child pornography containing images produced using materials
shipped in interstate and foreign commerce in violation of 18 U.S.C. §
2252A(a)(5)(B), (3) one count of using interstate commerce to attempt to
persuade a minor to engage in unlawful sexual conduct in violation of 18 U.S.C. §
2422(b), and (4) one count of traveling in interstate commerce to engage in sex
acts with a minor in violation of 18 U.S.C. § 2423(b). He was sentenced to 97
months imprisonment and 36 months of supervised release. On appeal, Mr. Pearl
argues that (1) the Supreme Court’s decision in Ashcroft v. Free Speech
Coalition, 122 S. Ct. 1389 (2002) (holding unconstitutional portions of the Child
Pornography Prevention Act of 1996), requires that his convictions for
transporting and possessing child pornography be reversed and that the Double
Jeopardy Clause precludes his being retried, (2) a due process violation occurred
when police allegedly destroyed evidence in the case, and (3) the district court
improperly imposed a 5-level increase under U.S.S.G. § 2G2.2(b)(2) because Mr.
Pearl received no “pecuniary gain” for distribution of pornography.
Background
Beginning in November 1998, Mr. Pearl had a series of conversations via e-
mail, Internet chat, and telephone with Camielle Call-Tarbet, a social worker in
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Utah posing undercover as “Kami,” a twelve year old girl. Mr. Pearl lived in the
Washington, D.C., area at the time. Mr. Pearl sent Kami images of child
pornography and attempted to arrange to have a sexual encounter with her from
their first encounter over the Internet. Call-Tarbet contacted Detective Brad
Franke of the Logan City, Utah, police department and told him that she had
received child pornography over the Internet from an individual who apparently
also wanted to have a sexual relationship with a twelve year old girl. Detective
Franke contacted Agent Don Daufenbach of the U.S. Customs Service to aid in
the investigation.
Detective Franke posed undercover as Kami’s Uncle Dan and claimed to be
a 35 year old man attempting to molest Kami. Together with Call-Tarbet, Franke
arranged for Mr. Pearl to visit Salt Lake City in May of 1999. Mr. Pearl was
arrested upon arrival at the Salt Lake City airport on May 21, 1999. He was
carrying with him computer disks containing child pornography. A search of his
laptop computer also revealed files containing child pornography and records of
his e-mail messages.
On June 2, 1999, Mr. Pearl was indicted by a grand jury on three counts of
transporting child pornography by computer (counts 1-3), one count of
transporting child pornography by airplane (count 4), one count of possessing
child pornography (count 5), one count of coercion and enticement to engage in
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sexual conduct with a minor (count 6), and one count of traveling to engage in
sexual conduct with a minor (count 7). Following a jury trial, Mr. Pearl was
found guilty of counts 2 through 7 and was found not guilty of count 1.
Discussion
A. Ashcroft v. Free Speech Coalition
The district court’s instructions to the jury on counts 2 through 5 contained
both constitutional and unconstitutional definitions of child pornography. The
court instructed the jury that child pornography is “any visual depiction . . . where
(1) the production of such visual depiction involves the use of a minor engaging
in sexually explicit conduct, or (2) such visual depiction is, or appears to be, of a
minor engaging in sexually explicit conduct.” Supp. I, Instruction 21. The “is, or
appears to be” aspect of the definition of child pornography in 18 U.S.C. §
2256(8)(B) and relied upon by the district court in its instructions to the jury, see
United States v. Pearl, 89 F. Supp. 2d 1237, 1247-48 (D. Utah 2000) (finding
“appears to be” language in statute constitutional), was found to be overbroad and
thereby unconstitutional by the Supreme Court. Free Speech Coalition, 122 S. Ct.
at 1405. Because Mr. Pearl began his challenge as to the sufficiency of the
indictment and the jury here returned a general verdict and did not specify the
grounds for conviction, we must vacate the convictions on counts 2 through 5
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because one of the possible grounds for conviction is unconstitutional. See
Griffin v. United States, 502 U.S. 46, 53 (1991) (“[W]here a provision of the
Constitution forbids conviction on a particular ground, the constitutional
guarantee is violated by a general verdict that may have rested on that ground.”);
Stromberg v. California, 283 U.S. 359, 368 (1931) (“[I]f any of the clauses in
question is invalid under the Federal Constitution, the conviction cannot be
upheld.”). The government concedes that Mr. Pearl’s convictions on these counts
must be vacated in light of the Supreme Court’s ruling in Free Speech Coalition,
though appending a footnote in a later brief asking this court to affirm the
convictions outright. Aplee. Supp. Br. at 2; Aplee. 2d Supp Br. at 11 n.3.
We disagree with the dissent’s view that, because Mr. Pearl failed to object
to the jury instructions pursuant to Fed. R. Crim. P. 30, this court need only
review for plain error and can affirm the convictions. First, this court has
endorsed the view that “the application of the plain error standard is inappropriate
when the aggrieved party may object to the error at any time,” as is the case with
respect to challenges to an indictment under Fed. R. Crim. P. 12(b)(2). United
States v. Gama-Bastidas, 222 F.3d 779, 785 n.4 (10th Cir. 2000) (citations
omitted). Mr. Pearl moved to dismiss his indictment on the grounds that the
CPPA’s definition of child pornography was unconstitutionally overbroad, a view
endorsed by the Supreme Court in Free Speech Coalition. Though the safer
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course would have been to pursue the argument as applied to the jury instructions,
the district court had already issued a ruling squarely finding the CPPA’s
definition of child pornography constitutional–a ruling manifested in the
erroneous jury instructions. The motion to dismiss the indictment plainly, then,
preserved Mr. Pearl’s right to challenge his convictions on appeal. See United
States v. Hathaway, 318 F.3d 1001, 1010 (10th Cir. 2003) (holding that a
“defendant cannot waive his right to challenge an indictment based upon its
failure to charge an offense”). 1**
In the cases cited by the dissent in which convictions under the CPPA were
affirmed post-Free Speech Coalition, we do not know whether the defendants
challenged the indictments, and, furthermore, the government offered expert
testimony at trial to prove that the images depicted actual minors. United States
v. Hall, 312 F.3d 1250, 1260 (11th Cir. 2002); United States v. Richardson, 304
F.3d 1061, 1064 (11th Cir. 2002). Our review of the images in this case on
appeal, however much they might appear to be actual minors, should not serve as
1
Nor are we persuaded that a review for harmless error should result in
affirming Mr. Pearl’s convictions. See United States v. Ellyson, —F.3d—, 2003
WL 1194332, at *7 (4th Cir. March 17, 2003) (holding under harmless error
review that verdict must be set aside where the government has failed “to
establish the use of an actual child victim . . . . [and] the evidence in the record,
coupled with the court’s instructions, permitted the jury to convict [the defendant]
on both a constitutional and unconstitutional basis”).
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a substitute for the government’s burden of proving at trial the depiction of actual
minors. Similarly, the fact that Mr. Pearl acknowledged at trial that the images
“depict[ed] minors engaged in sexually explicit conduct,” Rec. Vol. XV at 38,
does not require affirmation of his convictions because it is precisely the
ambiguity in the word “depict” that led to the Supreme Court’s holding in Free
Speech Coalition.
Our conclusion that Mr. Pearl’s convictions on counts 2 through 5 must be
reversed does not, however, preclude retrial of Mr. Pearl on these counts, the
Double Jeopardy Clause of the Fifth Amendment notwithstanding. The
government may retry a defendant whose convictions, as here, are set aside due to
trial error without running afoul of the Double Jeopardy Clause. See United
States v. Scott, 437 U.S. 82, 90-91 (1978) (“The successful appeal of a judgment
of conviction, on any ground other than the insufficiency of the evidence to
support the verdict, poses no bar to further prosecution on the same charge.”)
(citations omitted). Where the government produces no evidence at trial, then
double jeopardy bars retrial. See United States v. Smith, 82 F.3d 1564, 1567-68
(10th Cir. 1996). That is certainly not the case here; there is sufficient evidence
in this record to permit a jury to conclude beyond a reasonable doubt that the
children in the pornographic images were actual minors. Because the government
“cannot be held responsible for ‘failing to muster’ evidence sufficient to satisfy a
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standard [actual minors] which did not exist at the time of trial,” and because this
is “trial error” rather than “pure insufficiency of evidence,” Mr. Pearl may be
retried without violating double jeopardy. United States v. Wacker, 72 F.3d 1453,
1465 (10th Cir. 1995).
B. Brady/Trombetta Violations
Mr. Pearl claims that Detective Franke deleted e-mail messages and
discarded a computer hard drive relevant to the case. In particular, Mr. Pearl
alleges that Detective Franke deleted e-mail messages from Ms. Call-Tarbet sent
during the course of the investigation. According to Detective Franke, the hard
drive on the computer on which the e-mail messages were stored malfunctioned,
and he threw it in the garbage. Because entrapment was part of his defense, Mr.
Pearl claims that the e-mail messages “reveal the ongoing ‘project’ between Det.
Franke and Call-Tarbet whereby they hook ‘fish’ on the Internet, and Call-Tarbet
promotes Detective Franke as Jamasis in sex chat rooms.” Aplt. Br. at 28. Upon
Defendant’s motion for a new trial, the district court denied the motion on the
grounds that the Defendant was able to produce the e-mail messages from the
sender’s (Ms. Call-Tarbet’s) computer and cross examine Detective Franke about
the deleted e-mail messages. VI Rec. Doc. 409 at 4-6.
We review the district court’s factual finding concluding that the
government did not destroy potentially exculpatory evidence for clear error, see
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United States v. Parker, 72 F.3d 1444, 1451 (10th Cir. 1995), though where “a
new trial motion is based on an alleged Brady violation,” we “review the district
court’s ruling de novo.” United States v. Quintanilla, 193 F.3d 1139, 1146 (10th
Cir. 1999). The same de novo standard is applied to the district court’s
determination whether the undisclosed evidence was material. United States v.
Hughes, 33 F.3d 1248, 1251 (10th Cir.1994). Brady v. Maryland, 373 U.S. 83
(1963) governs exculpatory material that is still in the government’s possession,
and California v. Trombetta, 467 U.S. 479 (1984), and Arizona v. Youngblood,
488 U.S. 51 (1988), govern exculpatory evidence no longer in the government’s
possession. See United States v. Gomez, 191 F.3d 1214, 1218 (10th Cir.1999).
To establish a Brady violation, a defendant must show “1) that the
prosecution suppressed evidence; 2) that the evidence was favorable to the
accused; and 3) that the evidence was material.” Smith v. Sec’y of N.M. Dep’t of
Corr., 50 F.3d 801, 824 (10th Cir. 1995) (internal quotation marks omitted). For
police destruction of evidence to rise to the level of affecting a defendant’s Due
Process rights under California v. Trombetta, the evidence “must both possess an
exculpatory value that was apparent before the evidence was destroyed, and be of
such a nature that the defendant would be unable to obtain comparable evidence
by other reasonably available means.” 467 U.S. 479, 489 (1984). In addition,
unlike a Brady analysis, the defendant must show that the government acted in
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bad faith. Youngblood, 488 U.S. at 58. Because this case presents an issue of the
government’s destruction of evidence, we analyze Mr. Pearl’s claim under the
Trombetta standard.
Mr. Pearl utterly failed in his motion for a new trial to demonstrate that the
e-mail messages were exculpatory and that the government acted in bad faith. All
or virtually all of the deleted e-mail messages contained on the damaged and
discarded hard drive were contained on another drive (either Mr. Pearl’s or Ms.
Call-Tarbet’s computer), thereby failing to satisfy the “unable to obtain
comparable evidence by other reasonably available means” aspect of Trombetta
analysis. Furthermore, there was no evidence that the detective acted in bad faith.
The loss of the e-mail messages and hard drive was, at worst, the product of
negligence. Parker, 72 F.3d at 1452 (“Mere negligence is not sufficient to
establish . . . bad faith.”). Furthermore, defense counsel had an adequate
opportunity to cross examine Detective Franke concerning the deleted e-mail
messages and to raise the entrapment defense before the jury.
Mr. Pearl also argues that the district court should have held an evidentiary
hearing to determine whether loss of the e-mail messages constituted a due
process violation. We review the decision of the district court on the propriety of
an evidentiary hearing for an abuse of discretion. United States v. Nichols, 169
F.3d 1255, 1263 (10th Cir. 1999). The district court was under no obligation to
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hold an evidentiary hearing, see United States v. Sutton, 767 F.2d 726, 729 (10th
Cir. 1985), and we find that the district court acted well within its discretion
when it decided not to hold an evidentiary hearing and instead resolved
Defendant’s Brady claim on the record. See Lawrence v. Lensing, 42 F.3d 255,
259 (5th Cir. 1994).
C. Sentencing Issues
Mr. Pearl was given a five-level increase to the guideline calculation
pursuant to U.S.S.G. § 2G2.2(b)(2). Under that section of the Guidelines, a
defendant’s sentence can be increased “[i]f the offense involved distribution.”
Distribution, in turn, is defined as “includ[ing] any act related to distribution for
pecuniary gain . . . . ,” Application Note 1. Application Note 2 to § 1B1.1
provides that “[t]he term ‘includes’ is not exhaustive.”
Because we are remanding counts 2 through 5 for retrial, we need not
address the apparent circuit split over whether an increase may be imposed absent
a pecuniary gain. Compare United States v. Laney, 189 F.3d 954, 959 (9th Cir.
1999) and United States v. Black, 116 F.3d 198, 202-03 (7th Cir. 1997)
(pecuniary gain required) with United States v. Probel, 214 F.3d 1285, 1289 (11th
Cir. 2000); United States v. Lorge, 166 F.3d 516, 518 (2d Cir. 1999); United
States v. Hibbler, 159 F.3d 233, 238 (6th Cir. 1998) and United States v. Canada,
110 F.3d 260, 263 (5th Cir. 1997) (pecuniary gain not required in order to impose
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5-level increase).
Mr. Pearl initially contested the district court’s sentencing decision not to
group counts 4 and 5 (relating to possession and transportation of child
pornography) with counts 6 and 7 (relating to enticement and traveling to engage
in sexual activity with a minor). Aplt. Br. at 43-45. He then filed a motion to
withdraw this argument, confirming this at oral argument. Because the
convictions on counts 4 and 5 will now be vacated and remanded for retrial, it
would be premature to address this issue at this time. We thus deny the motion as
moot.
In a pro se filing to this court, Mr. Pearl seeks leave to raise a claim that
the district court erred in responding to a question from the jury about the
application of the entrapment instruction, and reasserts the argument made by his
counsel regarding the alleged Brady violation. As Mr. Pearl is represented by
counsel, we deny his motion to file an additional pro se supplemental brief which
the court received but did not file. To the extent he seeks to raise claims of
ineffective assistance of counsel, we note that “[i]neffective assistance of counsel
claims should be brought in collateral proceedings, not on direct appeal. Such
claims brought on direct appeal are presumptively dismissible, and virtually all
will be dismissed.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.
1995).
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Conclusion
For the foregoing reasons, we VACATE the convictions on counts 2
through 5 and REMAND the case to the district court for retrial of those counts.
The convictions on counts 6 and 7 are AFFIRMED. The motion to supplement
the record with trial counsel’s letter requesting the government take into custody
various computers of law enforcement personnel is granted.
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00-4170, United States v. Pearl
BRISCOE, Circuit Judge, concurring and dissenting:
I concur in the majority’s resolution of the Brady/Trombetta issue and its
affirmance of defendant Thomas Pearl’s convictions on Counts 6 and 7. I
respectfully dissent, however, from the majority’s decision to vacate Pearl’s
convictions on Counts 2 through 5 for transporting and possessing child
pornography.
Prior to 1996, “Congress defined child pornography as . . . images made
using actual minors.” Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389, 1397
(2002). In 1996, Congress enacted the Child Pornography Prevention Act
(CPPA), 18 U.S.C. § 2251 et seq., and “extend[ed] the federal prohibition against
child pornography to [include] sexually explicit images that appear[ed] to depict
minors but were produced without using any real children.” Id. at 1396. More
specifically, the CPPA added two prohibited categories of speech: (1) 18 U.S.C. §
2256(8)(B), which prohibited “any visual depiction, including any photograph,
film, video, picture, or computer or computer-generated image or picture” that
“[wa]s, or appear[ed] to be, of a minor engaging in sexually explicit conduct”;
and (2) 18 U.S.C. § 2256(8)(D), which defined child pornography to include any
sexually explicit image that was “advertised, promoted, presented, described, or
distributed in such a manner that convey[ed] the impression” it depicted “a minor
engaging in sexually explicit conduct.”
These additional categories of prohibited speech were in place at the time
Pearl committed the acts in question and was charged in this case. Thus, Counts
2 through 5 of the indictment, which charged Pearl with transporting and
possessing “child pornography” in violation of 18 U.S.C. §§ 2252A(a)(1) and
(a)(5)(B), 1 implicitly incorporated these additional categories of prohibited
speech. After he was indicted, Pearl moved to dismiss Counts 2 through 5 of the
indictment on the grounds that the two categories of prohibited speech added by
the CPPA, 18 U.S.C. §§ 2256(8)(B) and (D), were overbroad, vague, and
unconstitutional. In support of his motion, Pearl asserted that “[n]o evidence
ha[d] yet been adduced on the record as to whether the alleged images [we]re
images of actual minors or whether the alleged images [we]re computer
‘morphed’ images, i.e., computer composite images that may contain body parts
from various individuals which are combined or ‘morphed’ into an image that is
not real.” ROA, Vol. I, Doc. 134 at 1-2. The district court denied Pearl’s motion.
At no time thereafter did Pearl question whether the images at issue showed
1
Section (a)(1) makes it a felony for any person knowingly to transport in
interstate commerce “by any means, including by computer, any child
pornography.” Section (a)(5)(B) makes it a felony for any person knowingly to
possess any “computer disk . . . that contains an image of child pornography that
has been . . . transported in interstate . . . commerce by any means, including by
computer.”
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actual children engaged in explicit sexual activity. Indeed, prior to trial, Pearl
stipulated that “he knew the[] images [at issue] were child pornography and that
minors appear[ed] in the images.” ROA, Vol. IV, Doc. 351 at 2; see also id.,
Doc. 350 (minute order noting that “the dft stipulated to the fact that the images
contained child pornography and that there [we]re minors in the pictures”).
Consistent with this stipulation, at trial Pearl admitted all of the essential
elements of the child pornography-related counts and argued only that he had
been entrapped by law enforcement officers and their agents. Pearl admitted
under cross-examination that the computer diskettes seized from him at the Salt
Lake Airport contained images of child pornography and that the images depicted
minors engaged in sexually explicit conduct. 2 Likewise, Pearl admitted under
2
The following colloquy took place between the prosecutor and Pearl
concerning images contained on Pearl’s laptop computer:
Q. Mr. Pearl, when you came to Salt Lake City on May 21st, 1999,
you brought your laptop computer with you, didn’t you?
A. Yes, I did.
Q. And you also brought some computer diskettes; isn’t that right?
A. Yes, it is.
Q. Mr. Pearl, I’m handing you what have been marked Plaintiff’s
Exhibits 44-A through 44-H, 45-A through 45-K, 46-A through 46-R,
47-A through 47-F, and 48-A through 48-L. If you’ll please take a
look at these and tell the jury if these are the images that you brought
to Salt Lake City on May 21st, 1999 on those computer diskettes?
A. I would imagine, if these are the ones that were found on the
diskettes.
Q. You’re not denying those are the images, are you?
A. No, not at all.
(continued...)
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cross-examination that he sent images of child pornography over the internet and
that those images showed minors engaged in sexually explicit conduct. 3 Finally,
Pearl did not move for judgment of acquittal on the grounds that the images at
issue were “virtual” rather than actual minors.
Pearl now asserts, however, that in light of the Supreme Court’s decision in
Free Speech Coalition, his child pornography-related convictions must be
reversed and the case remanded to the district court with instructions that a
judgment of acquittal be entered with respect to those counts. In support of his
assertion, Pearl notes that the district court’s instructions to the jury defined the
phrase “child pornography” to include not only visual depictions involving the use
(...continued)
2
Q. Do you agree those images depict minors engaged in sexually
explicit conduct?
A. Yes.
ROA, Vol. XV at 38.
3
The following colloquy took place between the prosecutor and Pearl
concerning images sent by Pearl over the Internet:
Q. Mr. Pearl, do you agree that you sent child pornography to Mrs.
Camielle Call-Tarbet over the Internet on May 4th, 1999?
A. Yes.
Q. Mr. Pearl, I’m handing you what have been marked as Plaintiff’s
Exhibits 8-A through 8-P. Could you please take a look at those and
tell me if those are the images that you transmitted to her that day?
A. Yeah.
Q. And you agree, do you not, that those pictures are minors
engaged in sexually explicit conduct?
A. Yes.
ROA, Vol. XV at 40.
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of “a minor engaging in sexually explicit conduct,” but also the unconstitutional
language from § 2256(8)(B) encompassing visual depictions that “appear[ed] to
be . . . of a minor engaging in sexually explicit conduct.” ROA, Supp. Vol. I,
Jury Inst. No. 21. Although Pearl admits that the Double Jeopardy Clause does
not necessarily prohibit a retrial of the child pornography-related counts, he
asserts that the evidence presented at trial was insufficient to support his
convictions under the “actual minor” definition of “child pornography.”
The threshold question is what standard of review to apply to Pearl’s
arguments. Although Pearl initially objected to the constitutionality of the
“virtual” minor definition in his pretrial motion to dismiss the child pornography-
related counts of the indictment, he made no further mention of the issue after the
district court denied his motion. In particular, he failed to object, as required by
Federal Rule of Criminal Procedure 30, to the district court’s jury instruction
defining child pornography. Likewise, he failed to move for judgment of
acquittal on the grounds that the images at issue were “virtual” rather than actual
minors. I therefore conclude that the issues he now asserts are subject to review
only for plain error. E.g., United States v. Lee, 54 F.3d 1534, 1540 (10th Cir.
1995). Plain error exists when a clear or obvious error affecting substantial rights
has seriously affected the fairness, integrity, or public reputation of the judicial
proceeding. Johnson v. United States, 520 U.S. 461, 466-67 (1997).
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The majority concludes, mistakenly in my view, that Pearl’s motion to
dismiss the indictment was sufficient to preserve his current objections to the
district court’s jury instruction. In reaching this conclusion, the majority first
suggests, citing United States v. Gama-Bastidas, 222 F.3d 779, 785 n.4 (10th Cir.
2000), that application of the plain error standard is inappropriate “when the
aggrieved party may object to the error at any time.” Gama-Bastidas, however,
rests on the principle stated in Federal Rule of Criminal Procedure 12(b)(2) that
the failure of an indictment to state an offense may be raised at any time by the
defendant or the court itself. No such principle applies to objections to jury
instructions. Rather, as outlined in Federal Rule of Criminal Procedure 30
(2002), “[n]o party may assign as error any portion of the charge or omission
therefrom unless that party objects thereto before the jury retires to consider its
verdict, stating distinctly the matter to which that party objects and the grounds of
the objection.” That leads to the majority’s second rationale, i.e., that Pearl’s
motion to dismiss the indictment “plainly” preserved the issue. Maj. Op. at 6.
The only authority cited by the majority for this proposition, United States v.
Hathaway, 318 F.3d 1001, 1010 (10th Cir. 2003), is inapposite. Hathaway rests
on the same principle as Gama-Bastidas – that a defendant may raise at any time
the failure of an indictment to state an offense. It does not hold that a
defendant’s challenge to an indictment relieves him of his obligation to comply
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with Rule 30.
After reviewing the record on appeal, I am convinced that the district
court’s definitional instruction, though clearly erroneous, did not affect Pearl’s
substantial rights or seriously affect the fairness, integrity, or public reputation of
the judicial proceeding. As noted, Pearl stipulated prior to trial that minors
appeared in the images at issue, and admitted this fact at trial under cross-
examination. A review of the images at issue verifies this fact – there is no doubt
that each image contains one or more minors, most of whom appear to be
prepubescent. Thus, there was no basis in the record for a reasonable jury to
conclude that the images were produced using adults who appeared to be minors.
Finally, a review of the images at issue clearly “show[s] that the children depicted
in those images were real.” United States v. Hall, 312 F.3d 1250, 1260 (11th Cir.
2002) (concluding similar instruction regarding definition of “child pornography”
was plain error but did not require reversal in light of the nature of the images
that defendant was charged with distributing). In other words, “no reasonable
jury could,” after examining the images, “have found that the images were virtual
children created by computer technology as opposed to actual children.” Id.; see
also United States v. Richardson, 304 F.3d 1061, 1064 and n.2 (11th Cir. 2002)
(concluding under similar circumstances that, because “[t]he children depicted in
th[e] images were real,” the “jury could not reasonably have found that the
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children were virtual children, as if created by computer imaging technology”). 4
Thus, I conclude there was no risk that the jury convicted Pearl under the
constitutionally erroneous portion of the district court’s definitional instruction
(i.e., the “appears to be” portion of the instruction).
For these reasons, I would affirm all of Pearl’s convictions, including those
for transmitting and possessing child pornography as charged in Counts 2 through
5.
4
The majority states that in Hall and Richardson, “the government offered
expert testimony at trial to prove that the images depicted actual minors.” Maj.
Op. at 6. What the majority overlooks, however, is that in both Hall and
Richardson, the court conducted its own independent review of the images at
issue and, in each case, concluded they were of actual children. See Hall, 312
F.3d at 1260 (“the pictures sent out to the jury are in the record before this court
and they show actual children”); Richardson, 304 F.3d at 1064 (“We have
examined the images shown to the jury. The children depicted in those images
were real.”).
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