United States v. Rodriguez-Pacheco

United States Court of Appeals
For the First Circuit

No. 05-1815

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID RODRIGUEZ-PACHECO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Torruella and Lynch, Circuit Judges,
and Woodcock,* District Judge.

Héctor L. Ramos-Vega, Assistant Federal Public Defender, with
whom Joseph C. Laws, Jr., Federal Public Defender, and Patricia A.
Garrity, Assistant Federal Public Defender, were on brief, for
appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom
Rosa Emilia Rodriguez-Velez, United States Attorney, was on brief,
for appellee.

February 5, 2007

*
Of the District of Maine, sitting by designation.
 LYNCH, Circuit Judge. David Rodriguez-Pacheco appeals

from his sentence of thirty months' imprisonment and three years of

supervised release following his guilty plea to the crime of

possession of child pornography. See 18 U.S.C. § 2252(a)(4)(B);

see generally Child Pornography Prevention Act of 1996 (CPPA), 18

U.S.C. § 2251 et seq. Utilizing the advisory sentencing

guidelines, the district court held that Rodriguez-Pacheco

possessed at least ten images of child pornography on the hard

drive of his computer. That finding resulted in a two-level

increase to defendant's sentencing guideline range. See U.S.S.G.

§ 2G2.4(b)(2) (2002). Consideration of the guidelines was an

appropriate first step in the court's sentencing determination.

United States v. Jiménez-Beltre, 440 F.3d 514, 518-19 (1st Cir.

2006) (en banc).

Rodriguez-Pacheco presents a single legal issue on

appeal: whether the prosecution must, in the absence of direct

evidence, produce expert opinion testimony that a particular

pornographic image is of a real, non-virtual child, in order to

meet its burden of proof by a preponderance of evidence at

sentencing. Defendant argues that as a matter of law the Supreme

Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234

(2002), requires the government to produce such expert opinion

testimony, even in the absence of direct testimony provided by

defendant, to meet the burden of proof of guilt beyond a reasonable

-2-
doubt, and so also the lesser burden of proof by a preponderance of

evidence at sentencing.1 He argues for a per se rule of reversal

in the absence of such expert opinion testimony as to meet its

burden to each of ten images.

We hold that the premise of the argument is wrong: Free

Speech Coalition does not impose any requirement that the

government produce such expert opinion testimony or be deemed to

have failed to establish proof by a preponderance of evidence.

This is the view of every circuit that has addressed the question.

Further, Free Speech Coalition does not overrule this

court's decision in United States v. Nolan, 818 F.2d 1015 (1st Cir.

1987), holding that such expert opinion testimony -- that a

photographic image is of a real child -- is not required to meet

the government's burden of proving guilt beyond a reasonable doubt.

Id. at 1018-20. No other circumstance leaves this panel free to

overrule Nolan. We reject, as we have before, such a per se

approach that expert opinion testimony on this issue is a sine qua

non. Reviewing the totality of the evidence, we affirm the

sentence.

1
On appeal, defendant does not dispute the court's finding
that one of the images is of a prepubescent minor or a child under
the age of twelve. Nor is there any dispute that the images meet
the definition of sexually explicit conduct.

-3-
 I.

Defendant was charged on September 1, 2004 under a

Superseding Indictment which alleged that he knowingly possessed

one or more items that contained a visual depiction of an actual

person under the age of eighteen engaged in sexually explicit

conduct, and that the items were shipped in interstate or foreign

commerce by means of a computer, in violation of 18 U.S.C.

§ 2252(a)(4)(B). The Superseding Indictment also made the

sentencing allegation that Rodriguez-Pacheco knowingly possessed at

least ten such images.

On September 27, 2004, while the jury was being selected,

defendant entered a straight plea of guilty to the requisite

knowing possession of at least one such image which traveled in

interstate commerce. He did not agree, however, that he possessed

at least ten images of minors engaging in sexually explicit

conduct, which would enhance his guidelines sentencing range under

U.S.S.G. § 2G2.4(b)(2) (2002). The court accepted defendant's

guilty plea and stated that it would address the enhancement issue

at sentencing. Defendant waived jury determination of the disputed

sentencing enhancements. At that time, the government indicated it

had expert reports to support its position on guilt and sentencing.

The government had prepared its case under what was then this

circuit's rule, short-lived and later withdrawn, that the

government was obligated to produce an expert opinion as to

-4-
reality, even in the absence of any evidence to the contrary, in

order to meet its burden of proof beyond a reasonable doubt.

United States v. Hilton (Hilton I), 363 F.3d 58, 65-66 (1st Cir.

2004).

The court held further hearings on September 29, 2004,2

and on several days in April 2005. The government offered evidence

on a sample of the 234 pornographic images taken from defendant's

computer. The government presented a pediatrician, Dr. Pedro

Jaunarena-Perez, who testified using the Tanner scale that ten of

the images obtained from defendant's computer were of children

under age eighteen.

The government also presented expert testimony on the

issue of whether the images were of real, non-virtual people. The

court accepted Dr. Richard Vorder Bruegge of the FBI as an expert;

he testified both as to the methodology to be used in looking at

images to determine whether the image was of a real person and to

his conclusions that Exhibits 5 through 15 and Exhibit 17 contained

images of real people. The parties agree that the prosecution did

not ask Dr. Vorder Bruegge his opinion as to whether Exhibit 16 was

2
The withdrawal of the Hilton I rule occurred on September
27, 2004, the same day as defendant's change of plea hearing.
There is no indication that the court or the parties were aware
that the Hilton I rule had been withdrawn at any time during the
change of plea hearing or the sentencing evidentiary hearing on
September 29, 2004. The panel majority opinion was withdrawn and
replaced by a per curiam opinion, United States v. Hilton (Hilton
II), 386 F.3d 13 (1st Cir. 2004), which did not contain a rule
requiring expert testimony. Id. at 18-19.

-5-
of an actual person. There is no suggestion the expert did not

have an opinion; he simply was not asked for it.3

When the sentencing hearing resumed on April 26, 2005,

defendant, relying on Free Speech Coalition, argued that as a

matter of law the prosecution was required to provide expert

opinion testimony that each of the ten images was of an actual

child, and that the prosecution had failed to do so as to Exhibit

16 because Dr. Vorder Bruegge did not testify as to whether the

depicted child was real or not. The district court rejected the

argument that Free Speech Coalition imposed any such requirement.

It did hold that Nolan had not been overruled and was binding

precedent.

The district court later found that Exhibit 16 was of a

real child which satisfied the ten-image requirement of U.S.S.G.

§ 2G2.4(b)(2) (2002). The court explained that it was competent to

make factual findings as to whether the child in Exhibit 16 was

real in light of the evidence of record before it. The district

court found that the image in Exhibit 16 portrayed sexually

explicit conduct and was of an actual child. The court imposed the

3
The government made clear that it would present Dr.
Vorder Bruegge as an expert on whether a series of particular
exhibits, including Exhibit 16, were of real children, and that the
expert had examined each image. The direct examination did not
entirely go image by image. For example, the prosecution jumped
from Exhibits 7 and 8 to Exhibits 21 and 22, and then to Exhibit
24. Frequent jumps were made to connect later numbered exhibits to
earlier ones. This happened with Exhibit 15. The prosecution then
simply went on to ask Dr. Vorder Bruegge about Exhibit 17.

-6-
two-level guidelines increase, based on its own review of the

image, the expert testimony of Dr. Jaunarena-Perez that the image

was of a minor, and its use of Dr. Vorder Bruegge's testimony as to

the methodology for distinguishing between real and virtual images;

the court also noted the absence of any testimony that the images

were not of actual children, to counter this evidence.

The district court, under the post-Booker advisory

guidelines system, 543 U.S. 220 (2005), took into account

mitigating factors and sentenced Rodriguez-Pacheco to thirty months

of imprisonment and three years of supervised release.

II.

A. Effect of Free Speech Coalition

Our standard of review for legal questions, including

those about the effect of Free Speech Coalition, is de novo.

United States v. Dunning, 312 F.3d 528, 531 (1st Cir. 2002). The

question of whether or not a particular image is of a virtual child

or of a real child is an issue of fact, to be determined by the

trier of fact. United States v. Farrelly, 389 F.3d 649, 654 (6th

Cir. 2004), abrogated on other grounds by United States v.

Williams, 411 F.3d 675, 678 n.1 (6th Cir. 2005). The standard of

review for determinations of fact under the sentencing guidelines

is for clear error. United States v. Rosario-Peralta 199 F.3d 552,

568 (1st Cir. 1999). We give due deference to the district court's

-7-
findings of fact under the guidelines. United States v. Duclos,

214 F.3d 27, 31 (1st Cir. 2000).

The prosecution must prove beyond a reasonable doubt that

the image is of an actual child in order to establish guilt.

United States v. Syphers, 426 F.3d 461, 465 (1st Cir. 2005); United

States v. Hilton (Hilton II), 386 F.3d 13, 18 (1st Cir. 2004);

accord United States v. Sims, 428 F.3d 945, 957 (10th Cir. 2005).

The government bears the burden, by a preponderance of the

evidence, to make the showing that the child is a real child for

sentencing purposes. See U.S.S.G. § 6A1.3 (2002) (commentary); see

also United States v. Zuleta-Alvarez, 922 F.2d 33, 37 (1st Cir.

1990).

Under Nolan, this circuit rejected a per se rule that the

government must produce expert testimony in addition to the images

themselves, in order to prove beyond a reasonable doubt that the

images depicted were of real children. Nolan, 818 F.2d at 1018-20.

Nolan involved magazine photographs which the court found to be of

real children in light, inter alia, of the clarity of the

photographs and the fact that the same child was in several

photographs in a variety of poses. Id. at 1018. The defendant in

Nolan argued that "the prosecution failed to prove that the

pictures were not composite representations or otherwise faked or

doctored, or . . . computer-generated" or even "fabricated using

photographs of nude children taken from legitimate sources." Id.

-8-
at 1016. Nolan held that the mere possibility, unsupported by

evidence, that the images could have been produced by use of

technology and not using real children was not sufficient to reject

a lower court's ruling founded on reasonable inferences derived

from experience and common sense.

We agree with the district court that Nolan has not been

overruled by Free Speech Coalition. To start, Free Speech

Coalition did not arise from a criminal prosecution. Rather, the

case was a civil suit seeking declaratory and injunctive relief; it

concerned a First Amendment facial overbreadth attack on certain

provisions of the CPPA. 535 U.S. at 243-44. The Court held

overbroad and unconstitutional the provision of 18 U.S.C.

§ 2256(8)(B),4 which stated:

(8) "child pornography" means any visual
depiction, including any photograph, film,
video, picture, or computer or computer-
generated image or picture, whether made or
produced by electronic, mechanical, or other
means, of sexually explicit conduct, where --
. . .
(B) such visual depiction is, or
appears to be, of a minor engaging in
sexually explicit conduct.

Free Speech Coalition, 535 U.S. at 241, 256 (emphasis added). The

First Amendment overbreadth issue arose from the "or appears to be"

language of that section, by which Congress sought to punish

4
The Court also held unconstitutional 18 U.S.C.
§ 2256(8)(D), which extended the prohibition of child pornography
to any sexually explicit image that "conveys the impression" that
it depicts "a minor engaging in sexually explicit conduct." Free
Speech Coalition, 535 U.S. at 242, 258.

-9-
possession of virtual images, which did not involve real children.

Id. at 241.

Earlier, in New York v. Ferber, 458 U.S. 747 (1982), the

Supreme Court had upheld against First Amendment attack a state

child pornography statute which did not purport to prohibit virtual

images, but only images of real children. Id. at 765, 773-74. The

Court in Ferber upheld the state statute against First Amendment

attack, even though the statute prohibited material that would not

be obscene,5 because the production of child pornography utilizing

real children necessarily harmed the children. Id. at 759-60; id.

at 758 & n.9 (noting the legislative judgment that "the use of

children as subjects of pornographic materials is harmful to the

physiological, emotional, and mental health of the child[ren]");

see also United States v. Frabizio, 459 F.3d 80, 84 (1st Cir. 2006)

(discussing the harm done to children through the production of

child pornography).

In Free Speech Coalition, by contrast, the production of

virtual images (the possession of which was prohibited by the CPPA)

did not directly harm real children. 535 U.S. at 236 ("[T]he CPPA

prohibits speech that records no crime and creates no victims by

its production. Virtual child pornography is not 'intrinsically

5
Under Miller v. California, 413 U.S. 15 (1973), the test
for obscenity is whether the work, taken as a whole, appeals to the
prurient interest, is patently offensive in light of community
standards, and lacks serious literary, artistic, political, or
scientific value. Id. at 24.

-10-
related' to the sexual abuse of children." (quoting Ferber, 458

U.S. at 759)). As a result, Free Speech Coalition held that 18

U.S.C. § 2256(8)(B) was overbroad because of the "or appears to be"

clause. Id. at 256.

The Court in Free Speech Coalition did not rule on the

nature of the proof the government must produce to demonstrate that

an image of a child was of a real child. That argument was not

before the Court, which had before it only the issue of the facial

constitutionality of the statute. There was also no issue as to

whether the statute had been unconstitutionally applied to an image

which the government had failed to prove was of a real child.

The remaining provisions of the CPPA, not struck, remain

intact. The unconstitutional provisions of the Act, which expanded

the prohibition against child pornography to encompass materials

that did not involve the use of real children, are severable from

the CPPA, and did not affect the constitutional viability of

provisions regulating possession of traditional child pornography.

See United States v. Kimler, 335 F.3d 1132, 1141 (10th Cir.), cert.

denied, 540 U.S. 1083 (2003); United States v. Kelly, 314 F.3d 908,

911 (7th Cir.), cert. denied, 538 U.S. 1001 (2003); United States

v. Hall, 312 F.3d 1250, 1259 (11th Cir. 2002), cert. denied, 538

U.S. 954 (2003). Since the Supreme Court did not address the issue

before us, and since the statute as excised survives, our pre-CPPA

case law, including Nolan, survives as well.

-11-
 Our reading of the effect of Free Speech Coalition agrees

with that of every circuit that has addressed the question. For

example, in United States v. Irving, 452 F.3d 110 (2d Cir. 2006),

the court upheld a jury verdict convicting defendant of possession

of child pornography based on videos where the government offered

no proof beyond the videos themselves that the images were of real

children. Id. at 122. Rejecting the argument that Free Speech

Coalition necessarily created a bright-line rule, the court noted:

Although the Supreme Court noted the possible
evidentiary difficulty of distinguishing
virtual and actual child pornography, it did
not establish a bright-line rule requiring
that the government proffer a specific type of
proof to show the use of an actual child.

Id. at 121 (citing Free Speech Coalition, 535 U.S. at 254-56).

Free Speech Coalition does not lay down "the absolute requirement

that, absent direct evidence of identity, expert testimony is

required to prove that the prohibited images are of real, not

virtual, children." Kimler, 335 F.3d at 1142; see also Farrelly,

389 F.3d at 653-54; United States v. Slanina, 359 F.3d 356, 357

(5th Cir. 2004) (per curiam); United States v. Deaton, 328 F.3d

454, 455 (8th Cir. 2003) (per curiam). The same cases universally

accept the proposition that juries are capable of distinguishing

between real and virtual images, without expert assistance.

Irving, 452 F.3d at 122 (video images); Farrelly, 389 F.3d at 654;

Slanina, 359 F.3d at 357; Kimler, 335 F.3d at 1142; Deaton, 328

F.3d at 455. In a number of cases evaluating the effect of

-12-
erroneous jury instructions, the appellate courts have examined

images themselves and, on that basis, determined that those images

were of real children. See Becht v. United States, 403 F.3d 541,

549 (8th Cir. 2005); Hall, 312 F.3d at 1260; United States v.

Richardson, 304 F.3d 1061, 1064 & n.2 (11th Cir. 2002).

B. Vitality of Nolan

This leaves the defendant's alternate argument that

technology has progressed so far that we should abandon the

approach that there is no per se rule that the government must

provide an expert opinion that an image is of a real child. We

understand the dissent to join this argument, but not to argue that

Free Speech Coalition itself overrules Nolan.

A panel of this court is normally bound to follow an

earlier panel decision that is closely on point, unless an

exception exists to the principles of stare decisis. Williams v.

Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995) (subsequent

case history omitted). As a leading commentator has stated:

The doctrine of stare decisis provides that
courts must abide by or adhere to cases that
have been previously decided and that a legal
decision on an issue of law that is contained
in a final judgment is binding in all future
cases on the court that made the legal
decision and all other courts that owe
obedience to that court. In other words, the
doctrine of stare decisis incorporates two
principles: (1) a court is bound by its own
prior legal decisions unless there are
substantial reasons to abandon a decision; and
(2) a legal decision rendered by a court will

-13-
 be followed by all courts inferior to it in
the judicial system.

3 J. Moore et al., Moore's Manual -- Federal Practice and Procedure

§ 30.10[1] (2006) (footnotes omitted).

In this circuit, we have recognized two exceptions to

this stare decisis rule.6 The first exception applies when "[a]n

existing panel decision [is] undermined by controlling authority,

subsequently announced, such as an opinion of the Supreme Court, an

en banc opinion of the circuit court, or a statutory overruling."

Williams, 45 F.3d at 592. This exception does not apply here, as

there is no Supreme Court opinion, en banc opinion of this circuit,

or statute that overrules Nolan.

We have also recognized a second, limited exception that

permits one panel to overrule another in "those relatively rare

instances in which authority that postdates the original decision,

although not directly controlling, nevertheless offers a sound

reason for believing that the former panel, in light of fresh

developments, would change its collective mind." Id. The second

exception likewise does not apply to this case. The dissent argues

that we should overrule Nolan under this second exception in part

6
Williams cited generally to Colby v. J.C. Penney Co., 811
F.2d 1119 (7th Cir. 1987), which concerned the misapplication by a
district court of stare decisis principles. Colby discussed the
differences between deference due to authoritative versus
persuasive decisions and the wisdom of one circuit court
considering the views of other circuit courts in order to maintain
uniformity in federal law. Id. at 1123. Here, of course, every
circuit court to consider the issue has rejected defendant's
proposed rule.

-14-
because of technological developments. But the "fresh

developments" considered in Williams were not technological changes

but rather fresh developments in the law in the form of the views

of another circuit court. Id.; see also Carpenters Local Union No.

26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 145 (1st Cir. 2000).

We made clear the limits of the second Williams exception

in Eulitt v. Maine, 386 F.3d 344 (1st Cir. 2004), stating that "[a]

second exception exists when recent Supreme Court precedent calls

into legitimate question a prior opinion of an inferior court."

Id. at 350 (emphasis added) (citing Carpenters Local, 215 F.3d at

141 (overruling circuit precedent in light of two Supreme Court

cases); Crowe v. Bolduc, 365 F.3d 86, 89, 92 (1st Cir. 2004)

(overruling circuit precedent in light of a Supreme Court case)).

Further, in United States v. Guzmán, 419 F.3d 27 (1st Cir. 2005),

the court described the second Williams exception as applying in

"instances that fairly may be described as hen's-teeth rare." Id.

at 31.

The Nolan rule is that the issue on appeal of whether a

pornographic image is of a real child is to be treated as a

sufficiency of the evidence question, evaluating the evidence as a

whole. There is no reason, much less a compelling reason based on

new facts, to abandon that rule,7 even assuming that new fact

7
The dissent attempts to analogize to a drug identity case
and claims that expert testimony or at least the opinion of a
knowledgeable lay person is required to establish the illicit
nature of a substance. This is not accurate. "Proof based on

-15-
developments may lead to abandonment by one panel of a prior

circuit precedent. The Supreme Court has recognized in itself (but

not necessarily in the circuit courts) the power to depart from

stare decisis "to bring its opinions into agreement with experience

and with facts newly ascertained." Vasquez v. Hillery, 474 U.S.

254, 266 (1986) (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S.

393, 412 (1932) (Brandeis, J., dissenting)) (internal quotation

marks omitted). The present rule, rather than an inflexible rule

requiring that expert evidence must be provided by the prosecution,

reflects a far better method to accommodate developments in

technology. No occasion is presented here to depart from the

principles of stare decisis based on technological developments.

Defendant and the dissent also rely on language in Free

Speech Coalition indicating that Congress was concerned that new

technology made it possible to produce realistic virtual images

and, as technology improved, experts may have difficulty

distinguishing virtual images from real images. But defendant and

the dissent insufficiently appreciate language in Free Speech

Coalition that refers to the continuing use of real children:

scientific analysis or expert testimony is not required to prove
the illicit nature of a substance, and identification of a
substance as a drug may be based on the opinion of a knowledgeable
lay person." United States v. Walters, 904 F.2d 765, 770 (1st Cir.
1990) (emphasis added). In Walters, we also said that "[a]s a
general matter, '[i]dentification of a controlled substance does
not require direct evidence if available circumstantial evidence
establishes its identity beyond a reasonable doubt.'" Id. (second
alteration in original) (quoting United States v. Harrell, 737 F.2d
971, 978 (11th Cir. 1984)).

-16-
 If virtual images were identical to illegal
child pornography, the illegal images would be
driven from the market by the
indistinguishable substitutes. Few
pornographers would risk prosecution by
abusing real children if fictional,
computerized images would suffice.

Free Speech Coalition, 535 U.S. at 254.

Whatever improvements may eventually be made in

technology,8 the Supreme Court's observation about the market for

child pornography is still correct. There is no basis to assume

that the producers of child pornography have widely converted to

8
The dissent cites several articles on the state of
technology. At most, the articles describe the kinds of
photographic alterations that are possible with recent
technological advances, but they do not say that images of real and
virtual people are indistinguishable. See M. Aspan, Media; Ease of
Alteration Creates Woes for Picture Editors, N.Y. Times, Aug. 14,
2006, at C4 (noting only that photographic alterations of real
images may be difficult to detect); H. Farid, Digital Doctoring:
How to Tell the Real from the Fake, 3 Significance 162, 162-66
(2006), available at http://www.cs.dartmouth.edu/farid/
publications/significance06.pdf (describing the possibility of
creating composite photographs using existing images of real
people, but not commenting on the creation of realistic images of
virtual people); C. Johnston, Digital Deception, Am. Journalism
Rev., May 1, 2003, at 10 (discussing composite images of real
people, not images of virtual people); S.L. Leach, Seeing Is No
Longer Believing, Christian Sci. Monitor, Feb. 2, 2005, at 15
(describing methods of photographic manipulation, but not
suggesting that current technology allows creation of virtual
people that are indistinguishable from real people). The dissent
also cites a law review note for the proposition that "[t]here is
wide agreement that an ordinary person cannot generally tell a
real image from a virtual one." T.J. Perla, Note, Attempting to
End the Cycle of Virtual Pornography Prohibitions, 83 B.U. L. Rev.
1209, 1220 (2003). However, the note provides no support for this
claim beyond a reference to a commercial brochure advertising
virtual image rendering hardware. Id. at 1220 n.60. The brochure
makes no claims as to the ability of a non-expert to distinguish
between real and virtual images of people.

-17-
exclusive use of virtual pornography. Even before Free Speech

Coalition, Nolan made the point that, given the proliferation and

sheer number of the pornographic images available, common sense

strongly suggests that many of the images on the market are of real

children. 818 F.2d at 1018.

Nor is there any reason to think that the exploitation of

real children to produce pornography has ceased. We know as a

matter of fact that the market continues using real children to

produce pornography because the cases, including this one, continue

to have in them direct evidence that a real child was used. See,

e.g., Frabizio, 459 F.3d at 82 & n.3; United States v. Smith, 459

F.3d 1276, 1287 (11th Cir. 2006); United States v. Mack, 452 F.3d

744, 745 (8th Cir. 2006). In this case, multiple images taken from

defendant's computer were identified as depicting real children,

after comparing the images to those compiled in the Child

Exploitation and Obscenity Reference File and the database

maintained by the FBI's Child Victim Identification Program.

Defendant himself admitted that one of the images was of a real

child.

Nor is there any reason to assume that particular images

on which a prosecution is based have been produced by such superior

technology. In this case, for example, certain of the images had

been published in magazines from the 1970s or 1980s, well before

there was the capacity to do any realistic form of virtual imaging.

-18-
 The burden of proof remains on the government to prove

the pornographic image is of a real child. The overarching legal

point is the holding stated in Nolan: "[T]he prosecution was not

required, as part of its affirmative case, to rule out every

conceivable way the pictures could have been made other than by

ordinary photography." 818 F.2d at 1020; see also United States v.

Smith, 680 F.2d 255, 259 (1st Cir. 1982) ("The Government . . .

need not exclude every reasonable hypothesis of innocence, provided

the record as a whole supports a conclusion of guilt beyond a

reasonable doubt."); 26 J. Moore et al., Moore's Federal Practice

§ 629.05[2] (3d ed. 2006) ("Proof beyond a reasonable doubt does

not require that the government adduce evidence excluding all

reasonable defense theories, thereby leaving only the conclusion of

guilt independently proved.").

We should not be misunderstood: the government at all

times has the burden of proof by a preponderance of the evidence at

sentencing, and the defendant has no burden. There is nothing

inconsistent between the government's having that burden and

Nolan's statement that the defendant, while under no obligation to

do so, was "free to have presented evidence of his own suggesting

that the picture[] used other than real subjects. He could have

called an expert to testify as to how photographs like [this one]

could have been made without using real children." Nolan, 818 F.2d

at 1020. If defendant had chosen to mount a defense of this type

-19-
and presented such expert testimony, and had the government not

called an expert to explain why the image was not real, the

government ran the risk of not persuading the trier of fact. This

does not shift the burden of proof. The evaluation of the

sufficiency of the evidence is done on the record as a whole, not

on "bright line" tests such as the one defendant advances.

C. Unpreserved Arguments Made By The Dissent

The dissent injects new arguments into the case which

were not raised by Rodriguez-Pacheco in the district court or on

appeal. As such, the arguments have been waived. See United

States v. Gobbi, 471 F.3d 302, 312 n.4 (1st Cir. 2006).

The dissent first makes the novel argument that the

proceedings below were unfair and so the defendant was sandbagged.

Defendant never made this argument at any time. If defendant

thought there was procedural unfairness, he would have said so.

The dissent's procedural unfairness argument is without merit in

any event. The argument seems to be that defendant came to expect

there would be an expert opinion on each of the ten images, and his

disappointed expectations mean the case should be remanded. The

argument, which has other deficiencies, ignores the fact that when

the government prepared the case, the panel opinion in Hilton I

required expert testimony, and so the case proceeded on that basis.

Before the expert gave his testimony, the law had changed, the rule

in Hilton I had been withdrawn, and the defense was well aware of

-20-
the change. Defendant knew from the outset of the sentencing

hearing that the government would present an expert on the reality

of the images. Yet he chose not to introduce his own expert, or

offer any evidence of his own that the images were not of real

children. Further, the district court's reference to "scientific,

technical or other specialized skill" to help it determine the

reality of children depicted in the prosecution's exhibits came

when it explained its reasons for admitting Dr. Vorder Bruegge as

an expert witness, over defense counsel's objection. That could

not have misled defendant.9

The dissent next makes the novel argument that it was

error for the district court not to sua sponte infer from the

government's failure to ask Dr. Vorder Bruegge for his opinion on

Exhibit 16, that he would have said, if asked, that the image was

not of a real child. The defense did not ask for such an

inference;10 its argument was that, whatever the government's

reasons for not questioning the expert on Exhibit 16, only an

9
The dissent quotes the district court at the September
29, 2004 hearing as stating, "I can't make a finding unless I have
an expert that this is a minor." The district court was obviously
unaware at the time that this requirement, imposed by Hilton I, had
been withdrawn by Hilton II on September 27, 2004.
10
It is clear from the prosecutor's statements at the
hearing that she thought she had asked Dr. Vorder Bruegge's opinion
on Exhibit 16. The prosecutor even accused the defense of
misstating the record. The court was then required to go back into
the record.

-21-
expert, not a court or even a jury as factfinder, could make that

determination.

The dissent also gains no support from cases in which

adverse inferences are requested and drawn, based on a party's

failure to produce a witness at all. See, e.g., Olszewski v.

Spencer, 466 F.3d 47, 61 (1st Cir. 2006). Here, there was no

failure to produce a witness, only a failure to ask a particular

question from a produced witness. Further, no inference can be

drawn, contrary to the dissent, from the district court's failure

to take over the examination of the witness when Exhibit 16 was not

raised during questioning.

Finally, the dissent makes another argument which was not

made by defendant on appeal. Defendant's argument on appeal is

that the law requires the government to produce the opinion of an

expert that an image is of a real child, and, since no such opinion

was offered, therefore the evidence was insufficient, regardless of

the other evidence. We have rejected that legal proposition. The

dissent makes a different argument that the remaining evidence was

insufficient as a matter of evidence. The dissent confuses the

role of the expert with the district court's role as factfinder.

That argument is also waived. Nonetheless, we discuss why the

argument fails.

The government met its burden of proof by a preponderance

of the evidence. The district court as finder of fact was entitled

-22-
to use Dr. Vorder Bruegge's testimony about criteria relevant to

determining whether an image is real to assist it in making its own

determination concerning Exhibit 16. The expert testified that

computer-generated images have difficulty recreating the

characteristics of human eyes and skin. He also stressed the

importance of evaluating how individuals in an image interact with

one another and their environment -- factors to consider included

shadows, gravity, and the effect of pressure on a human body. The

expert also evaluated flesh and muscle tone on human images. The

district court judge adopted Dr. Vorder Bruegge's methodology,

making clear that his conclusion as to the reality of the child in

Exhibit 16 was "[b]ased on the testimony that [the expert] provided

as to all of the other photographs [and] the criteria that he was

using." Further, the judge "conclude[d] that the skin, that the

tonation of the muscles, that both hands on the thighs of the male

impress the Court that this is not a virtual image but it is a real

image." The district court made these findings, applying Dr.

Vorder Bruegge's methodology. That is sufficient. The district

court had sufficient evidence, and no evidence to the contrary,11

to conclude that Exhibit 16 depicted a real child.

11
When the court commented on the failure of the defendant
to produce an expert, and so it had to use its own judgment, it was
in the context of the defendant's argument that a factfinder could
not, without particular expert testimony, have an opinion as to the
reality of a depicted child. The district court drew its own
conclusion that the image was real, noting that it was given no
testimony that the image was not real.

-23-
 Having addressed the dissent's additional arguments, we

note that defendant himself does not otherwise challenge the

court's finding that the tenth image is of a real child.

The sentence is affirmed.

"Dissenting opinion follows"

-24-
 TORRUELLA, Circuit Judge (Dissenting). Although the

appellant was charged with a serious and opprobrious crime, as with

any person accused under our system of justice, irrespective of the

nature of the government's allegations against him, he is entitled

to due process of law. The government has failed to meet its

burden of establishing by competent evidence a crucial element that

must be proven before the district court can apply enhanced

sentencing factors. See Ashcroft v. Free Speech Coalition, 535

U.S. 234, 256 (2002) (clarifying that the government may not

criminalize possession of non-obscene sexually explicit images that

appear to be, but do not in fact, depict real children); United

States v. Hilton (Hilton II), 386 F.3d 13, 19 (1st Cir. 2004)

(same). Thus appellant has not received all the process that is

due to him. Because my colleagues in the majority have concluded

otherwise, I am compelled to respectfully dissent.

Succinctly put, for the sentencing enhancement

established in U.S.S.G. § 2G2.4(b)(2) (2002) to be validly applied

by the district court in this case, the government had to establish

that Appellant David Rodríguez-Pacheco ("Appellant") possessed at

least ten proscribed images. The government only properly proved

that he possessed nine images of actual, real minors.

Unfortunately, after the close of the evidence, the district judge

erroneously proceeded to provide the missing link by concluding,

without adequate foundation in the evidence, that there was a tenth

-25-
image of an actual person. Because there was no such tenth image

established by adequate proof, in my opinion, we have no

alternative but to disallow the resulting sentence, and to remand

the case for appropriate sentencing.

As will be shown hereinafter, the district court

committed three pivotal errors, related in nature, but distinct in

factual and legal significance. Individually and collectively

these errors inevitably lead to the outcome I suggest.

First, if we consider the district court's rulings

throughout most of the sentencing process, Appellant was led to

believe that the government would need to prove the reality of the

persons depicted for all of the images introduced to prove the

sentencing enhancement. The court's last minute change of course,

whereby it effectively relieved the government of its burden, was

not only a legally incorrect shifting of the burden that properly

belongs to the government, see Hilton II, 386 F.3d at 18, but it

also left Appellant high and dry at a point in the proceedings when

it was most tactically disadvantageous. Second, although the

government presented competent evidence regarding the reality of

nine of the ten images introduced into evidence for the purpose of

enhancing Appellant's sentence, it failed to do so regarding the

tenth image, notwithstanding its opportunity and legal burden to do

so. An inference was thus raised that the government was unable to

prove this element as to that tenth image. This inference was

-26-
never overcome by competent evidence to the contrary, and thus the

basis for the attempted sentencing enhancement fails. Third, given

the state of scientific, technical, and specialized knowledge

extant today in the digital reproduction of photographic images,

the district judge was independently unqualified to reach a valid

conclusion regarding whether the tenth image represented a real

person. Because there was no proper evidentiary foundation

presented as to the tenth image, the district court could not

independently find a crucial fact, i.e., that the image was of a

real person. Thus, the government failed to meet its burden in

this respect and the district court erroneously applied the

sentencing enhancement.

I. The Initial Proceedings

A Superseding Indictment charged Appellant with a single

count of possessing prohibited visual depictions in violation of 18

U.S.C. § 2252(a)(4)(B). In its relevant portions, this statute

prohibits the knowing possession of matter which contains any

visual depiction if "(i) the producing of such visual depiction

involves the use of a minor engaging in sexually explicit conduct;

and (ii) such visual depiction is of such conduct."12 The statute

12
18 U.S.C. § 2252(a)(4)(B) states in full:
(a) Any person who–-
(4) either–-
(B) knowingly possesses 1 or more books,
magazines, periodicals, films, video tapes, or
other matter which contain any visual depiction
that has been mailed, or has been shipped or

-27-
defines "minor" as "any person under the age of eighteen years," 18

U.S.C. § 2256(1), and "sexually explicit conduct" as conduct

specified in 18 U.S.C. § 2256(2)(A).13

Appellant pled guilty to the charged violation pursuant

to a straight plea. See Hr'g on Change of Plea Tr. 2, Sept. 27,

2004.14 For purposes of that plea, Appellant admitted to possessing

"at least one photograph which traveled in interstate commerce by

use of a computer and [that] those depictions represent a minor

engaging in sexually explicit conduct." Id. at 28; see also id. at

transported in interstate or foreign commerce, or
which was produced using materials which have been
mailed or so shipped or transported, by any means
including by computer, if–-
(i) the producing of such visual
depiction involves the use of a minor engaging
in sexually explicit conduct; and
(ii) such visual depiction is of such
conduct.
13
18 U.S.C. § 2256(2)(A) states in relevant part that:
"sexually explicit conduct" means actual or simulated–-
(i) sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-anal,
whether between persons of the same or opposite
sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or
pubic area of any person.
14
The date on the cover of the transcript reads "27th day of
February, 2001." This is an obvious error as Appellant was not
indicted until July 9, 2004. This is one of several errors found
throughout a confused and deficient transcript record. The
corrected date of September 27, 2004 is corroborated by Docket
Entry No. 51.

-28-
29, 37, 53, 74,15 76, 78-81. He contested "[e]verything else." Id.

at 37. Specifically, he refused to accept two sentencing

allegations charged in the indictment, id. at 22-23, 37-39, 48-49,

each of which would result in a two-level increase under the

sentencing guidelines: (1) that he knowingly possessed images of a

prepubescent minor engaging in sexually explicit conduct, U.S.S.G.

§ 2G2.4(b)(1) (2002), and (2) that he knowingly possessed at least

ten images of a minor engaging in sexually explicit conduct, id.

§ 2G2.4(b)(2).

The district court, after extensive interchanges with

Appellant, his lawyer, and government counsel, accepted the plea as

entered by Appellant and subject to the caveats expressed by

Appellant and his lawyer. Hr'g on Change of Plea Tr. 37, 81,

Sept. 27, 2004. The court issued an order setting a hearing in

which the government would be required to prove that "a number of

images, more than ten, (for the enhancement to be potentially

applicable), consist[] of real images, of minors of prepubescent

age engaging in sexually explicit conduct." Order 6, Feb. 8, 2005;

see also Evidentiary Hr'g Tr. 47, 54, 58, Sept. 29, 2004. Relying

on these rulings, Appellant waived a jury trial on the enhancement

issues. See Hr'g on Change of Plea Tr. 50-54, Sept. 27, 2004.

15
Although included in the transcript dated September 27, 2004,
the testimony beginning on page 73 apparently took place on
September 29, 2004.

-29-
 Appellant's explicit refusal to accept these two critical

allegations put the government on notice early on that it would

have to establish by competent evidence (1) that the persons

depicted in the images engaging in sexually explicit conduct were

less than eighteen years of age and prepubescent, and (2) that at

least ten of the depictions in Appellant's possession were of

actual real persons engaging in such conduct. See Free Speech

Coalition, 535 U.S. at 244, 256; Hilton II, 386 F.3d at 19.

The district court clearly understood "competent

evidence" regarding the age of those depicted in the images to mean

expert testimony. The district judge stated twice during the

course of the proceedings, "I can't make a finding unless I have an

expert that this is a minor." Hr'g on Change of Plea Tr. 77, Sept.

27, 2004; Evidentiary Hr'g Tr. 66, Sept. 29, 2004. The court's

understanding of "competent evidence" as to the second element, the

actual reality of the persons depicted in the images, was equally

clear:

The ruling of the Court, pursuant to Rule 702,
states, scientific, technical or other
specialized knowledge will assist the trier of
fact to understand evidence or determine a
fact in issue. And in this case there is a
fact in issue, and that is whether or not
these are authentic, real images or whether
they are virtual images. So scientific,
technical or other specialized skill is
needed.

Sentencing Hr'g Tr. 18-19, Apr. 7, 2005 (emphasis added); see also

Hr'g on Change of Plea Tr. 44, Sept. 27, 2004 ("[APPELLANT'S

-30-
COUNSEL]: And they would have to bring an expert to testify as to

that. THE COURT: Yes, they will.").

These are the premises under which the government

proceeded to present its sentencing enhancement case, see, e.g.,

Evidentiary Hr'g Tr. 53, Sept. 29, 2004 ("[GOVERNMENT COUNSEL]: The

requirement that exists is that we have to establish real children.

The Court has to enter specific findings."), and these are the

premises relied upon by Appellant before the rug was pulled out

from under him when it was too late to do anything about it, id. at

54.16

16
Counsel for the defense, in what turned out to be a prophetic
interchange with the district judge, stated during the course of
the September 29, 2004 hearing:

[APPELLANT'S COUNSEL]: If we're having the
sentencing hearing today does this preclude the
government coming in January and trying to present --
suppose they don't prove ten photographs does that
preclude the government from coming in January and trying
to prove ten photographs then?

THE COURT: No. I am holding the hearing as to the
enhancement today. That's it.

Evidentiary Hr'g Tr. 60, Sept. 29, 2004. The import of this and
surrounding discussions was that the government would have to
establish by expert witnesses the relevant ages of the persons
depicted and that they were real persons, and that failure to do so
would mean the enhancements would not be applied.

-31-
 II. The Government's Sentencing Enhancement Case

At the sentencing hearing, the government chose to meet

its burden17 by calling two separate expert witnesses: (1) one

expert to establish that the images depicted persons within the

parameters of the statutory definition of minors and that at least

one such depiction was of a child of prepubescent age, and (2) a

second expert to establish that the depictions were of real

children.

A. Dr. Pedro Jaunarena Pérez -- The Government's Expert on Age
Determination

The government called Dr. Pedro Jaunarena Pérez ("Dr.

Jaunarena"), a pediatrician, to testify as to the ages of the

persons depicted in Exhibits 6 through 8 and 10 through 16 -- ten

images in total. The government established that Dr. Jaunarena

earned his undergraduate and medical degrees at the University of

Puerto Rico, and did his internship at the Albert Einstein Medical

Center in Philadelphia, thereafter completing his residency in

pediatrics at the university hospital in the Puerto Rico Medical

Center. He has been a practicing pediatrician since 1962, and in

17
This was another area in which the district court showed
considerable equivocation, allowing Appellant to proceed under the
assumption that the government would have to prove the age and
reality of the persons depicted in the images by proof beyond a
reasonable doubt, see Hr'g on Change of Plea Tr. 54, Sept. 27,
2004; Evidentiary Hr'g Tr. 59-60, Sept. 29, 2004; Sentencing Hr'g
Tr. 37, Apr. 13, 2005, rather than by a preponderance of the
evidence as properly required, see United States v. Woodward, 277
F.3d 87, 91 (1st Cir. 2002).

-32-
private practice since 1967, when he became board certified in

pediatrics by the American Board of Pediatrics and the Board of

Medical Examiners. He is a member of the Puerto Rico Medical

Association, the Asociación Puertorriqueña de Pediatría, and the

American Academy of Pediatrics, in which he belongs to its section

on child abuse. As a member of the latter, he has attended and

participated in numerous seminars and presentations on child abuse

and receives a monthly journal on that subject. He was a pediatric

director of the Tyndal Air Force Base Hospital for several years,

and in addition to his present private practice, is an attending

pediatrician at Hospital Auxilio Mutuo in San Juan, Puerto Rico.

Sentencing Hr'g Tr. 3-6, 29-30, Apr. 13, 2005.

In his practice, Dr. Jaunarena "only see[s] children from

newborn to age 21." Id. at 7. During the course of this practice

he has examined "over one fourth of a million children." Id. at 8.

Dr. Jaunarena has testified as an expert in seven to

eight cases before the present one, where he was asked to determine

the ages of children in pornographic pictures or images shown to

him. The medical criteria used by Dr. Jaunarena to reach his

conclusions included sexual maturity scales, the best of which in

his opinion is the Tanner scale, a method of determining the

maturity of children, adolescents, and adults,18 and his own

18
See Hilton II, 386 F.3d at 15; see also David T. Cox,
Litigating Child Pornography and Obscenity Cases in the Internet
Age, 4 J. Tech. L. & Pol'y 1, 143-44 (1999). But see Arlan L.
Rosenbloom & James M. Tanner, Letter to the Editor, Misuse of

-33-
experience. He had to view over one thousand images portraying

children in those cases. Id. at 8-9, 20.

Based on these qualifications, the district court

concluded "that [Dr. Jaunarena] has enough experience for the Court

to accept him as a pediatrician and from reading images,

determining the age of persons." Id. at 11.

Dr. Jaunarena then proceeded to testify in detail

regarding the methodology used in the determination of the

chronological age of children. See id. at 24-29. Based on his

experience as a pediatrician, observation of physical

characteristics, depending on the sex of the individual, and use of

the Tanner scale, Dr. Jaunarena testified that he was able by just

seeing a naked child to reach an opinion as to the age range of

that child "within . . . one year, plus or minus." Id. at 28-29.

Thereafter, using this methodology, Dr. Jaunarena

examined a series of images which the government alleged had been

taken from Appellant's computer,19 namely, Government's Exhibits 6,

7, 8, 10, 11, 12, 13, 14, 15, and 16, giving his expert opinion

regarding the age of the person depicted in each image, and

substantiating his opinion in each case in accordance with the

Tanner Puberty Staging to Estimate Chronological Age, 102
Pediatrics 1494 (1998) (stating that the Tanner scale is properly
used to estimate sexual maturation, not for the purpose of
estimating specific chronological age).
19
The images had been previously identified by Héctor X. Colón,
an FBI computer forensic expert. See Evidentiary Hr'g Tr. 2 et
seq., Sept. 29, 2004.

-34-
methodology upon which he relied. Id. at 32 (Exhibit 6), 35

(Exhibit 7), 34-35 (Exhibit 8), 35-36 (Exhibit 10), 36 (Exhibit

11), 38 (Exhibit 12), 39 (Exhibit 13), 39-40 (Exhibit 14), 40

(Exhibit 15), 40-41 (Exhibit 16). In the case of all ten exhibits,

Dr. Jaunarena testified that the images depicted minor persons and

that at least nine of them were of prepubescent children. Id.

B. Dr. Richard Vorder Bruegge -- The Government's Expert on
Real/Virtual Imaging

On the question of the reality of the images presented to

prove the second enhancement for possession of ten or more

prohibited images, the government called as a witness Dr. Richard

Vorder Bruegge,20 an FBI image analyst with impressive credentials.

Dr. Vorder Bruegge has worked for the FBI for the last twenty years

and is presently assigned to the FBI's forensic audio, video, and

image analysis unit as an examiner of questioned photographic

evidence. Part of his work involves "image authentications,

determining such things as whether a person depicted in an image is

real or whether an image has been altered in some way." Sentencing

Hr'g Tr. 6, Apr. 7, 2005. Dr. Vorder Bruegge also conducts

research in his field of expertise, provides instruction to others

in law enforcement and forensic science, and serves on internal and

20
The transcripts indicate that the witness's last name is
spelled "Vorder Brugge," but this is apparently a mistake.
Appellant's Brief indicates that it is "Vorder Bruegge." I adopt
the latter spelling, including in quoting the transcripts.

-35-
external committees developing guidelines for the use of images in

law enforcement. Id. at 4-6.

Dr. Vorder Bruegge received his formal training at Brown

University, where he earned a bachelor of science degree in

engineering, and thereafter a master of science degree and a

doctorate in geological sciences. Ten years ago he entered a two-

year training program within the FBI laboratory designed to train

examiners of questioned photographic evidence. The training

included instruction in basic photography, laboratory photography,

and forensic photography; courses at the Rochester Institute of

Technology in digital imaging, digital image processing, and the

use of Adobe Photoshop, a software tool, in an engineering or

technical environment; video training at the Sony Institute; and

training in the use of a forensic platform called Avid. The FBI

also hired Professor Peter Ratner from James Madison University,

who "runs a program that is geared at creating computer-generated

people and creating computer-generated animations, . . . [to] come

in and teach a one-week class on how one goes about creating 3-D

people, as well as how one goes about seeing where the flaws are in

3-D computer-generated people so it's possible to discriminate

between what is a computer-generated person and what is not." Id.

at 6-7, 12 (emphasis added).21

21
I will explain the reason for the emphasis below.

-36-
 The most important part of Dr. Vorder Bruegge's training,

however, was on the job, working on cases while being supervised by

a qualified senior examiner. About 30% of his everyday practice

deals with image authentication, which for the most part involves

child pornography cases. Dr. Vorder Bruegge has worked on over a

dozen such cases, in connection with which he has reviewed more

than 10,000 images. Id. at 7-9, 12.

Dr. Vorder Bruegge's expertise in this field has been

recognized by his peers. He has been named a fellow of the

American Academy of Forensic Sciences, which is the highest level

of membership in the Academy and makes him eligible to be an

official of the Academy. Dr. Vorder Bruegge is also a member of

the International Association for Identification, and at the time

served as chair of the scientific group of imaging technology

("SWGIT"). SWGIT is an organization of state, federal, and

international law enforcement agencies, as well as members of

academia, whose mission is the development of guidelines and best

practices for the use of photography and imaging sciences in law

enforcement. See also Scientific Working Group on Imaging

Technology, International Association for Identification,

http://www.theiai.org/guidelines/swgit/index.php. Other relevant

professional and scientific organizations to which Dr. Vorder

Bruegge belongs include the American Society for Photogrammetry and

Remote Sensing, the International Society for Optical Engineering,

-37-
the Tau Beta Pi engineering honor society, and the Sigma Xi honor

society of research scientists. Sentencing Hr'g Tr. 7-8, Apr. 7,

2005.

Based upon these qualifications, the court ruled that

Dr. Vorder Bruegge was qualified as an expert under Rule 702

because his "scientific, technical or other specialized knowledge

will assist the [district judge] to understand evidence or

determine a fact at issue." Id. at 18-19 ("I find that this

gentlemen has training and can use his past education. And by

that, I mean his doctorate. Even in the field of his doctorate, he

has experience in that he has 10,000 photographs evaluated. He

seems to have skills, and he has acquired knowledge. So,

therefore, the Court will admit him as an expert."). The district

judge decided that given the posture of the case and the court's

prior rulings, "there is a fact in issue, and that is whether or

not these are authentic, real images or whether they are virtual

images . . . [and thus] scientific, technical or other specialized

skill is needed." Id. at 19 (emphasis added). It is important to

note that this ruling was made immediately after, and in the

context of, Dr. Vorder Bruegge's testimony that he had taken a

course given by Professor Ratner on the creation of computer-

generated virtual persons. See supra text accompanying note 10.

In authenticating an image, Dr. Vorder Bruegge testified,

there is a "sort of triage system in place." Sentencing Hr'g Tr.

-38-
9, Apr. 7, 2005. First, the expert determines if there are any

known victims, individuals who have previously been identified in

images, or if the image is from a known database, such as the Child

Exploitation and Obscenity Reference File ("CEORF"), which is a

database of images found in magazines that were published in the

1970s and 1980s. The CEORF was created by Dr. Vorder Bruegge's

unit in the FBI. The expert's identification of a known victim or

image serves the double purpose of identifying the victim and

determining the approximate date when the image was created. If

the image is of a person in the CEORF, it is possible to discount

the possibility that it is not of a real person, as such technology

did not become available until long after the time period covered

by the CEORF. Id. at 9, 28-29. Two other important databases of

known victims are the FBI's Child Victim Identification Program and

the National Center for Missing and Exploited Children's related,

but separately maintained, database. Id. at 28-30.

Once the available databases are checked, if the image is

not found therein, a scientific protocol has been established to

determine whether the image is real, has been altered, or was

computer-generated. Dr. Vorder Bruegge testified in detail

regarding the methodology used in determining whether an image

depicts a real person. The analysis comprises two parts: One

involves determining whether the image depicts a real person, and

the other, whether the image has been manipulated. Id. at 20.

-39-
 The question of whether an image has been manipulated is

analyzed first. This is done by visual inspection. Computers

enable Dr. Vorder Bruegge and others who do this work to inspect

the images in a highly magnified manner for signs of manipulation.

"For example, if a head is cut off one picture and superimposed on

another, there may be signs of that cutting and pasting operation

and by analyzing the [magnified] image, it's possible to look for

defects that would indicate this type of manipulation." Id.

In looking for signs of manipulation, there are a number

of features that the expert checks. These include making sure that

the light in the scene is consistent; checking for differences in

color within the scene;22 looking for consistency in the patterns

in a scene, such as variations in the paneling of the walls in a

courtroom; checking for variations in the texture or grain of the

image -- which are detected when the image is magnified -- which

would demonstrate that two different types of film were used; and

comparing the focus, or depth of field, across an image. Id. at

20-22.

Second, to determine whether there is a real person

depicted in the image, the expert looks at the characteristics of

the people in question. A computer-generated person created by a

state-of-the-art computer today does not have totally realistic

22
"[S]kin tones are something that is very difficult to
recreate and match . . . and so one [needs to go] through the
process of examining all parts of a body to look for variations."
Sentencing Hr'g Tr. 21, Apr. 7.

-40-
human features, as there are certain characteristics, such as the

eyes and skin, that are difficult to recreate from scratch with a

computer. Id. at 23.

The skin is a real problem because a great deal of detail

is required to make it look real. Three dimensional animation only

creates a static model, and as the character is moved to another

position, to be realistic, it must be "painted by hand . . . .

Each picture, to be realistic, has to be hand altered. There is a

checklist of skin features" that the expert must consider in

determining whether a person in an image is real or computer

generated. Id. at 24-25.

Another area that requires special attention in the

determination of whether an image depicts a real person is that of

the attachment of the limbs to the torso. With human beings, the

attachment of the limbs to the torso occurs in a very supple way,

which is very difficult to recreate on a computer. The expert

therefore looks for "crimps" at the intersections where arms or

legs meet the body as evidence that an image is a 3-D recreation.

Id. at 25.

The expert also looks for "defects like moles, freckles,

scars, even the fine wrinkles in the mouth [and] ears. Ears are

something that computer artists have an incredibly hard time

getting right because they think that an ear is just something that

you slap on the side of the head, but an ear actually has a lot of

-41-
detail to it and it can move[;] . . . it can shift as you are

talking . . . ." Id. at 26.

How individuals in a picture interact with one another

and their environment is also "very critical in assessing the

reality of the image." Id. This is reflected in a number of ways,

including whether shadows realistically fall across the body of

another person depicted, such that it is "[n]ot just a shadow

painted on a two-dimensional object but the shadow has to conform

to the three-dimensional nature of the person or the environment

behind it." Id. As another example, "if you have a person sitting

on a couch or on a bed, the material underneath the person should

react in a realistic fashion to the presence of that person. . . .

You have to basically program gravity into it and that isn't

something that is easy to do." Id. at 26-27.

In sum, the expert methodology

consists of going through this checklist of
all the things that make an image appear to be
real and then make human beings appear to be
real, and determining if there is any
violation of those observations that would
indicate that there is something wrong with
the image and lead one to the conclusion that
this is not an accurate image of a real
person.

Id. at 27-28.

Dr. Vorder Bruegge further testified that if there are

multiple images of one person of "sufficient quality, then based on

the fact that there are many images of the same person, the quality

-42-
exceeds that possibility to create in an artificial manner, then we

will conclude that it is a real person." Id. at 31. However, "if

we have only a single image, we do not . . . positively conclude

that that [sic] is a real person because the state-of-the-art of

image processing is such that someone . . . with a sufficient,

significant amount of skill, time and willingness to spend the time

can create a perfect fake image -- it is possible that someone

could create one single fake image . . . ." Id. at 30-31 (emphasis

added).

In addition to following an established methodology,

Dr. Vorder Bruegge's reports regarding authentication of images are

subject to peer review. Every report that is written in Dr. Vorder

Bruegge's laboratory "must be peer reviewed and a second qualified

examiner must sign off on the conclusions and report," thus

validating the reports by agreeing that the evidence supports the

conclusions therein. Id. at 33.

After obtaining testimony regarding standard methodology,

the government proceeded to elicit Dr. Vorder Bruegge's expert

opinion regarding the images depicted in Government's Exhibits 5

through 17, all of which he had examined on a prior occasion and

which had been duly identified with his initials.

Dr. Vorder Bruegge testified that in his expert opinion

Exhibit 5 depicts a real child. Id. at 38-39; Sentencing Hr'g Tr.

7-8, Apr. 8, 2005. He reached this conclusion based on the high

-43-
degree of detail in the picture, as well as the fact that there are

other pictures of this individual. Sentencing Hr'g Tr. 8, Apr. 8,

2005.

As to Exhibits 6, 7, 8, and 9, Dr. Vorder Bruegge's

opinion that the images depict real children was based in part on

the fact that the same individuals and scenes are depicted in

magazines known to have been published prior to April 1986. His

conclusion also depended on his expert examination of the quality

and level of detail in the images, and that there are multiple

pictures depicting the same individuals and scenes. Id. at 9-11,

16-17.

Exhibit 10, which Appellant had already admitted as

representing an image of a real child as part of his change of plea

colloquy, was nonetheless testified to by Dr. Vorder Bruegge as

representing, in his expert opinion, a real person and events. Id.

at 19.

Dr. Vorder Bruegge next testified regarding Exhibits 11

through 15, stating generally that "it is [his] opinion that these

pictures all depict real people and events." Id. at 20. He was

then individually quizzed as to each of these images: Exhibit 11,

id. at 23 (agreeing "that the image depicts real people with real

events"); Exhibit 12, id. (same); Exhibit 13, id. at 23-24 (same);

Exhibit 14, id. at 24 (same); and Exhibit 15, id. (same).

Dr. Vorder Bruegge alternatively based his opinion regarding

-44-
Exhibits 11 through 15 on the fact that they were all part of the

"Helen series" in one of the databases, id. at 25-26, and that

"they are high quality images with a lot of detail and there are

many of them. That is the basis, being able to look at those

images and say, this is the same person and location and events,

[that] enabled [Dr. Vorder Bruegge] to reach the opinion that they

are real." Id. at 27.

The government then jumped to Exhibit 17, proceeding to

question Dr. Vorder Bruegge regarding this image in the same manner

as it had regarding Exhibits 5 through 15, and establishing that of

the two persons depicted in the image, the girl laying below

depicted a real person, but the individual above her had been

manipulated in some way. Id.

No questions were asked of Dr. Vorder Bruegge by the

government (nor anyone else) regarding Exhibit 16, and of course,

neither did he testify that the image in said Exhibit 16 depicts a

real person, and thus, the government was short one image to prove

the enhancement sought against Appellant.

It is important to point out that immediately before

Dr. Vorder Bruegge was cross-examined by the defense, a discussion

arose regarding the status of Exhibits 1 through 19, that is,

whether they had been admitted into evidence, during which the

following exchange took place:

-45-
 THE COURT: There is no admission as to
the matter of being under age and having been
real images.

[APPELLANT'S COUNSEL]: They're admitted
in the sense that they were images taken from
my client's computer.

THE COURT: For those purposes they have
been admitted. For this matter [i.e., the
enhancement hearing], they have not been
admitted. . . .
. . .
[GOVERNMENT COUNSEL]: Except, of
course, Exhibit No. 10[, which was part of the
plea].

Id. at 29.

Thus, there can be no question in anyone's mind that as

to all these exhibits the government had tendered (that is,

Exhibits 1 through 19, including 16, but except Exhibit 10), the

government had the burden of establishing that the images depicted

real persons. At that point, of course, Dr. Vorder Bruegge was

still available to the government, and in fact, was still on the

stand, under oath, and the defense had not even commenced cross-

examination.

Why the government failed to ask their expert, Dr. Vorder

Bruegge, whether or not the image depicted in Exhibit 16

represented a real person is totally irrelevant. What is relevant

-- the only sure, cold fact on the record -- is that

notwithstanding the fact that Dr. Vorder Breugge was available to

testify, that he had undisputably examined Exhibit 16 prior to

taking the stand, and that he testified to exhaustion as to all of

-46-
the other government exhibits, giving his expert opinion based on

the methodology described at length above, Dr. Vorder Bruegge did

not speak when it came to Exhibit 16, the critical tenth image.

I shall presently discuss the legal consequences of the

inference raised by this silence. Suffice it to say for the

present that the negative inference that is raised against the

government by its failure to inquire of Dr. Vorder Bruegge his

opinion of the image in Exhibit 16 is compounded by the fact that

even after the defense's cross-examination of Dr. Vorder Bruegge,

the government had a second opportunity to ask Dr. Vorder Bruegge

about this critical missing link when it engaged in redirect

examination of him, yet again failed to do so. Id. at 43-44.

Appellant's counsel conducted a tactically deliberate

cross-examination of Dr. Vorder Bruegge, avoiding mention of

Exhibit 16 like the plague. Id. at 31-43. He was, of course,

perfectly entitled not to inquire about a subject not raised in

direct examination and as to which the government had the burden of

proof. See Hilton II, 386 F.3d at 18. He was also entitled to

count on the district court not coming to the aid of the

government, a subject which I shall cover in more detail presently.

However, what is worth mentioning at this time is that not only did

the government fail to inquire from Dr. Vorder Bruegge about

Exhibit 16, but the district court judge also did not at any time

avail himself of Dr. Vorder Bruegge's expertise, although obviously

-47-
it had plenty of opportunity to do so before the expert was excused

after a friendly farewell. See Sentencing Hr'g Tr. 45-56, Apr. 8,

2005.

In actual sequence, Dr. Jaunarena's testimony followed

that of Dr. Vorder Bruegge, with his taking the stand on April 8,

2005, and finalizing his testimony on April 13, 2005. Before

resting its case, the government recalled Héctor X. Colón, an FBI

agent that had testified on direct examination back on

September 29, 2004 regarding retrieval of the images from

Appellant's computer, see Evidentiary Hr'g Tr. 2, Sept. 29, 2004,

to allow him to be cross-examined by Appellant, see Sentencing Hr'g

Tr. 57-58, Apr. 8, 2005. We need not discuss his testimony further

as it is not relevant to the issue of this appeal. Suffice it to

say that eventually the government rested its case without

presenting any evidence that Exhibit 16 depicted a real person.

See Sentencing Hr'g Tr. 12-13, Apr. 20, 2005. Appellant's lawyer

wisely did not fill the lacuna left open by the government.

Even at this late date in the proceedings, there was much

equivocation and backtracking by both the government and the

district court on the evidence that had to be produced by the

government to prove that the images were of real children:

[GOVERNMENT COUNSEL]: It is our
understanding that it remains after Ashcroft
versus Free Speech, that [it] is [an] element
of the offense that the children portrayed in
the child pornography images are correct.

-48-
 THE COURT: That is the law. You still
have to prove that they're real. But they
backed off from Hilton [I] . . . . And now
additional evidence is not required. That is
what I understand.

[GOVERNMENT COUNSEL]: . . . [A]nd now
we're back to Nolan again. The United States
versus Nolan would still be good law, which
stood for the premise that a fact-finder can
make a determination without the requirement
of presenting expert witness testimony.

THE COURT: That's right. In other
words, I don't even need him, the doctor.23 I
don't even need him.

[GOVERNMENT COUNSEL]: That's correct.

THE COURT: But you do need experts for
the real images?

[GOVERNMENT COUNSEL]: No, Your Honor.

THE COURT: I don't?

[GOVERNMENT COUNSEL]: No, Your Honor.

THE COURT: In other words, I can also
conclude the real images?

[GOVERNMENT COUNSEL]: Yes, Your Honor.

Sentencing Hr'g Tr. 98-99, Apr. 13, 2005 (footnote added). The

government then argued that several circuit courts have decided

since the Ashcroft decision that expert testimony is not required

to establish that images depict real persons. Id. at 99-101. The

conversation continued:

[APPELLANT'S COUNSEL]: I do believe
that after Hilton [II] the Court is required

23
Dr. Jaunarena was the doctor then on the stand.

-49-
 to have certainty beyond a reasonable doubt
this is a person.

THE COURT: If it's an element of the
offense. If it's an element of the offense,
it is by the most strictest [sic] of
standards, which is beyond a reasonable doubt
. . . and they have decided that it is an
element of the offense that the images be
real.

[APPELLANT'S COUNSEL]: How is the Court
to determine that, except by an expert who
says that they are?

THE COURT: The expert can be used.

Id. at 101-02.

The district court then went on to point out that in the

withdrawn Hilton I opinion, which overruled Nolan, "[i]n addition

to the images, something else had to be presented," a requirement

which was absent from the "new" Hilton II opinion. Id. at 102.

Compare United States v. Hilton (Hilton I), 363 F.3d 58, 64 (1st

Cir. 2004) (overruling United States v. Nolan, 818 F.2d 1015 (1st

Cir. 1987)), with Hilton II, 386 F.3d at 18-19. The district judge

added: "Nonetheless, I have been provided two experts, one as to

real images and the other one as to the ages." Sentencing Hr'g Tr.

103, Apr. 13, 2005.

The next day of the hearing, on April 20, 2005, the court

stated:

THE COURT: . . . I'm reading Hilton
[II] in that I do not necessarily need an
expert to make a determination as to either
real images or as to minority and/or
prepubescent age.

-50-
 . . .
[GOVERNMENT COUNSEL]: . . .
Nonetheless, in this case we did submit that
the expert testimony of ---.

THE COURT: But there were certain
photographs that you did not produce an
expert, so I'm going to have to see all 15 of
them again. . . .

[APPELLANT'S COUNSEL]: Your Honor, I
have an issue with all of this. Number one, I
think that under Hilton [II], you need an
expert.

Sentencing Hr'g Tr. 18, Apr. 20, 2005.

III. The Crossing of the Rubicon:
The District Court Applies the Enhancements

The issue presented by this appeal came to a head on

April 26, 2005, when the court called a wrap-up hearing "to examine

each photograph to determine whether or not [it had] a real image

and to determine whether or not . . . one of the 10 images [was] of

prepubescent age." Sentencing Hr'g Tr. 2, Apr. 26, 2005. All went

well for the government as to Exhibits 6, 7, 8, 10, 11, 12, 13, 14,

and 15. Id. at 10-18.

Two problems arose, however, the first with Exhibit 9 and

the second with Exhibit 16. The government needed at least one of

these two to go into evidence to meet the minimum ten images

required for the sentencing enhancement.

The government ran into problems with Exhibit 9 early on.

Although Dr. Vorder Bruegge testified that this exhibit was an

image reflecting real people and real events, this exhibit was not

-51-
shown to Dr. Jaunarena. Id. at 13-15. That being the case, the

district judge concluded that "for the time being" he would make no

determination as to the age of the person. Id. at 14.

But later on, the district judge stated with respect to

Exhibit 9: "[Dr. Jaunarena] jumped 9. The Court will [therefore]

not make a finding as to this one. I have doubts." Id. at 23.

The judge then went on to say: "So notwithstanding, I have 10 real

images, and one prepubescent age. [The][t]en real images are 6, 7

and 8. That's three. 10, [four]; 11, [five]; 12, [six]; 13,

[seven]; 14, [eight]; 15, nine; and 16, [ten]." Id. (emphasis

added). The trouble with this arithmetic is, of course, that

Exhibit 16 suffered from the same defect as Exhibit 9, except in

the inverse.

Dr. Jaunarena had examined Exhibit 16, given his expert

opinion, and been subject to cross examination regarding Exhibit

16, but not regarding Exhibit 9, which was thus excluded. The

opposite was the case with respect to Exhibit 16: Dr. Vorder

Bruegge, although he examined Exhibit 9, subjected it to his expert

methodology, and gave his opinion regarding its contents, gave no

evidence as to the crucial Exhibit 16, notwithstanding having

examined it in accordance with established scientific methodology,

and additionally, notwithstanding his being within the control of

the government as its full-time employee. Of course, since he did

not testify on the question of the reality of the image depicted in

-52-
Exhibit 16, he was not subjected to the crucible of cross-

examination, or even to questioning by the court.

Counsel for Appellant made the best of what was obviously

a bad situation for his client, the district court having made an

apparent mid-course change based on its interpretation of the law.

The district judge concluded his factual determination:

16 is real and a minor. The argument
as to 16 is that I have no proof that it's
real. He's right. I've examined the record,
and other than the photography, do not have an
expert. He's right.

All right. He's right. There is no
expert. . . . Nolan has not been overturned
now.

So the Court, because there was no
evidence that it was not real, then I have to
use my judgement whether it was real or not,
and I conclude that it is real.

Based on what? Based on the testimony
that the doctor provided as to all of the
other photographs, the criteria that he was
using. I'm going to borrow those criteria and
state that I conclude that 16 is also a real
image. That's it.
. . .
For me the critical matter was that I
received no evidence whatsoever that it was
not real. I see it, it looks real, and I use
the criteria of Dr. Vorder Bruegge . . . and
that's the end of the ballgame.

Id. at 38-39 (emphasis added).

-53-
 IV. The Rest of the Ball Game

A. Burdens, Inferences, and No-Hitters

Of course, it was hardly the "end of the ball game," for

the burden was on the government to affirmatively prove that the

image in Exhibit 16 depicts a real person. Hilton II, 386 F.3d at

18 ("It bears repeating that the government is not released from

its burden of proof by a defendant's failure to argue, or by an

absence of evidence otherwise suggesting, the artificiality of the

children portrayed. That the children in the images are real

amounts to an element of the crime which the government must prove,

the burden of which should not be displaced to the defendant as an

affirmative defense."). Appellant was not required to prove or

even raise the reality issue.24

Not only did the district court inappropriately shift the

burden, but it also lulled the defense into believing that the

24
Contrary to the majority's position, Nolan's statement that
the defendant is free to present evidence that the image in
question is not real is inconsistent with the fact that the
government has the burden to prove that an image is real.
Requiring the defendant to come forward with evidence on an element
for which the government has the burden of proof is an
impermissible shifting of the burden to the defendant. "It is now
generally recognized that the 'presumption of innocence' is an
inaccurate, shorthand description of the right of the accused to
remain inactive and secure, until the prosecution has taken up its
burden and produced evidence and effected persuasion . . . ."
Taylor v. Kentucky, 436 U.S. 478, 483 n.12 (1978) (internal
quotation marks omitted). As I explain in more depth below, the
probability that an image is not real is high enough to require the
government to present some evidence to the contrary. Otherwise, as
a matter of law, the government's evidence is insufficient to meet
its burden of proof.

-54-
burden was fully on the government to prove by expert testimony

that ten images were real. The defendant based his defense

strategy on that belief. But on the last day of the sentencing

hearing, as described above, the district court suddenly switched

gears, permitting itself as the factfinder to make its own

determination without any expert help.

Furthermore, the district court's error in failing to

place due weight on the government's burden was compounded in this

case because Dr. Vorder Bruegge's failure or refusal to testify

regarding the reality of Exhibit 16 raises an inference, unrebutted

by competent evidence, that the reality of Exhibit 16 was in doubt.

See United States v. Charles, 738 F.2d 686, 698 (5th Cir. 1984)

("In general, the failure to produce a favorable witness or other

evidence when it is peculiarly within a party's power to do so

creates an inference that the witness' testimony will be

unfavorable."); see also Graves v. United States, 150 U.S. 118, 121

(1893) ("[I]f a party has it peculiarly within his power to produce

witnesses whose testimony would elucidate the transaction, the fact

that he does not do it creates the presumption that the testimony,

if produced, would be unfavorable."); United States v. Ariza-

Ibarra, 651 F.2d 2, 15-16 (1st Cir. 1981) (permitting an adverse

inference from a witness's failure to testify if "the evidence

shows that the witness is available to testify on behalf of the

party, that the testimony of the witness would be relevant and

-55-
noncumulative, and that the witness is not prejudiced against the

nonproducing party"); Olszewski v. Spencer, 466 F.3d 47, 61 (1st

Cir. 2006) (same); United States v. Davis, 261 F.3d 1, 57 (1st Cir.

2001) ("The evidence must be 'specially available' to the non-

producing party . . . ."); United States v. West, 393 F.3d 1302,

1309 (D.C. Cir. 2005) ("A missing-evidence instruction is

appropriate if it is peculiarly within the power of one party to

produce the evidence and the evidence would elucidate a disputed

transaction."); United States v. DeVita, 526 F.2d 81, 83 (9th Cir.

1975) ("Indeed, from the government's failure to produce a single

item of evidence from the surveillance in support of founded

suspicion, the only rational inference was that the informant was

unreliable at the time he gave the second tip.").

In this case:

(1) Dr. Vorder Bruegge, an FBI expert of questioned

photographic evidence with impeccable credentials, was available to

testify regarding the image in Exhibit 16;

(2) Dr. Vorder Bruegge had Exhibit 16 in his possession

and it was therefore available for inspection, study, and analysis

in accordance with the scientifically recognized methodology to

which he testified;

(3) Dr. Vorder Bruegge gave his expert opinion regarding

nine other government exhibits, which were similar in nature to

-56-
Exhibit 16 and which he also had in his possession and inspected,

studied, and analyzed in accordance with the mentioned methodology;

(4) Dr. Vorder Bruegge testified that in his opinion the

nine other exhibits depict real persons and incidents;

(5) Dr. Vorder Bruegge failed to testify regarding

whether or not the image and scene depicted in Exhibit 16 is real.

In view of these unassailable facts, the rational

inference arising from the record before the district court is that

had Dr. Vorder Bruegge testified regarding Exhibit 16 on the issue

of the "disputed transaction," i.e., whether or not the image

depicts a real person, his testimony would have been unfavorable to

the government's contention that it depicts a real person. See

West, 393 F.3d at 1309. Yet the district court nowhere addressed

this inference or the fact that the government offered no

appropriate evidence to overcome the inference, and in fact no such

evidence was available on the record before the district court.

B. The Majority's Galileo Conundrum

In making its present contention that expert testimony is

unnecessary for a factfinder to determine whether or not a

photograph depicts a real person, the government blithely chooses

to overlook the paper trail that it has left and in which it took

a diametrically opposed position. Unfortunately for the

government, it is a trail that is not easily hidden and cannot be

-57-
facilely bypassed, for it runs through, and has been noted in, high

places, as well as places that are not so high.

When before the Supreme Court in Free Speech Coalition,

arguing in favor of the constitutionality of the statutory

provision that banned virtual pornographic reproductions of

children as well as real images, the government contended that

"[v]irtual images . . . are indistinguishable from real ones . . .

[and even e]xperts . . . may have difficulty in saying whether the

pictures were made by using real children or by using computer

imaging." 535 U.S. at 254 (emphasis added). We took note of the

government's position on this very point when we decided Hilton II.

386 F.3d at 17 ("The government's second argument [in Free Speech

Coalition] was that eliminating actual child pornography

necessitates the prohibition on virtual pornography because virtual

images are indistinguishable from real ones." (emphasis added)).

That virtual and real child pornography images are

indistinguishable, and that even experts have difficulty

determining what is real and what is virtual, are not only

undeniable scientific judgments promoted by the government in Free

Speech Coalition and Hilton II, they are also conclusions which

were unquestionably verified in the present case by the

government's own actions, including the testimony of its own expert

witness, Dr. Vorder Bruegge. Sentencing Hr'g Tr. 30-31, Apr. 7,

-58-
2005 ("[T]he state-of-the-art of image processing is such that

someone . . . can create a perfect fake image . . . .").

Considering the evidence presented by the government

itself, I think it is proper to ask: Why would the FBI have a

scientific laboratory (as testified to by Dr. Vorder Bruegge), with

experts (such as Dr. Vorder Bruegge) dedicated to engaging in

complex scientific analysis pursuant to an established methodology

designed for the purpose of determining whether photographic

evidence in its possession depicts real or virtual images, in the

process of which the government undoubtedly spends considerable

amounts of public funds, if anyone, as the government now claims,

even someone without scientific, technical, or specialized

knowledge, and without engaging in the scientific methodology

described by Dr. Vorder Bruegge, can determine the reality of

questioned photographs merely by looking at the images alone?

It is also worth noting that the government's other

expert, Dr. Jaunarena, a pediatrician since 1962, who has examined

over 250,000 children, and who was able to testify about the ages

of those depicted in the exhibits presented by the government,

including Exhibit 16, was apparently not considered sufficiently

qualified to render an opinion as to the reality of those exhibits,

including Exhibit 16. Cf. Hilton II, 386 F.3d at 18-19 (rejecting

the government's argument that it was "commonsensical" that because

an expert pediatrician testified that the images depict minor

-59-
children, this testimony was sufficient to establish the further

element of reality). If an expert pediatrician is unqualified to

render an opinion as to the reality of an image depicting children,

how is it possible for a district judge to do so without any

personal expertise on the subject, without the aid of expert

opinion to help him reach a conclusion as to the reality of that

photograph, and without the benefit of peer review?

This was substantially what Appellant's lawyer argued to

the district court:

You are quite an accomplished lawyer,
but you are not an expert, the Court is not an
expert on identification. . . . [A]s the
Court is probably aware, I'm basically making
my appellate record here.
But the Court has not the curriculum
vitae of Dr. Vorder Bruegge, the Court has not
taken the continuing education on virtual
photography that Dr. Vorder Bruegge took, the
Court has not examined the three databases
which Dr. Vorder Bruegge used.
The Court has no experience in
addressing colors, tones, the patterns on the
picture, texture of the image, quality of the
film, consistency of photos. The Court
doesn't have the parameters to determine
whether the eyes, the skin, muscle tone and
skeletal structure are consistent. The Court
doesn't have any of the qualifications that
Dr. Vorder Bruegge said were indispensable for
him to reach a conclusion. The Court has not
been cross-checked by another expert like Dr.
Vorder Bruegge says he has.
The Court has no standards upon which
to base this determination, that photograph 16
is . . . a real image of a person.

-60-
Sentencing Hr'g Tr. 24-25, Apr. 26, 2005. He forgot to add that

the Court was not -- and could not be -- subjected to cross-examination.

The lack of expert testimony as to Exhibit 16

specifically, which would have allowed the factfinder to then reach

its own conclusion as to the reality of the image, could not be

remedied by the district court's simplistic and conclusory

analysis:

I conclude that [Exhibit 16] is real. Based
on what? Based on the testimony that the
doctor provided as to all of the other
photographs, the criteria that he was using.
I'm going to borrow those criteria and state
that I conclude that 16 is also a real image.
That's it.

Id. at 38-39 (emphasis added).

Well, that's not it at all, for all the reasons argued by

Appellant's counsel. That kind of bootstrap operation employed by

the district court was totally inappropriate.

C. The Stare Decisis Red Herring

The government proposes that notwithstanding the present

state of scientific knowledge, as well as the Supreme Court's

ruling in Free Speech Coalition, we are bound by United States v.

Nolan, 818 F.2d 1015 (1st Cir. 1987). It further argues that

several of our sister circuit courts who have passed upon the issue

before us since Free Speech Coalition have also concluded that the

district court, or jury, as the trier of fact is capable of

reviewing the evidence to determine whether the government has met

-61-
its burden and established that the images depict real children,

without the need for expert testimony. See United States v.

Slanina, 359 F.3d 356, 357 (5th Cir. 2004) (per curiam) ("[T]he

Government was not required to present any additional evidence or

expert testimony to meet its burden of proof to show that the

images downloaded by Slanina depicted real children, and not

virtual children."); Becht v. United States, 403 F.3d 541, 549-50

(8th Cir. 2005) (citing United States v. Deaton, 328 F.3d 454, 455

(8th Cir. 2003) (per curiam)); United States v. Sims, 428 F.3d 945,

956-57 (10th Cir. 2005) (citing United States v. Kimler, 335 F.3d

1132, 1142 (10th Cir. 2003)); United States v. Farrelly, 389 F.3d

649, 653-54 (6th Cir. 2004), abrogated on other grounds by United

States v. Williams, 411 F.3d 675, 678 n.1 (6th Cir. 2005); United

States v. Hall, 312 F.3d 1250, 1260 (11th Cir. 2002) (citing United

States v. Richardson, 304 F.3d 1061, 1064 & n.2 (11th Cir. 2002)).

There are several reasons why adherence to Nolan by this

panel regarding the specific issue before us -- i.e., whether the

government needs an expert witness to establish that the person

depicted is real -- is not required, the first two reasons being

related to the year in which Nolan was decided, 1987.

First, it is clear that Nolan was dealing with images

reproduced before 1986. See 818 F.2d at 1016 ("The parties

stipulated that on June 3 and 6, 1985, United States Customs mail

specialists discovered Swedish parcels mailed to Nolan, containing

-62-
a number of [child pornography] publications . . . ."). According

to the testimony of the government's witness in the present case,

Dr. Vorder Bruegge, the Nolan images could not have been anything

but real -- and therefore there was no need for expert testimony in

that case -- because it was not "until long after" the FBI created

the CEORF database in 1986 that the technology became available to

create a virtual image of a person. Sentencing Hr'g Tr. 26,

Apr. 7, 2005. Thus, the government's need for an expert witness to

establish the reality of the images in Nolan is, by today's

scientific standards, a non-issue. But there is more to this.

We said in Nolan that "the test for a factfinder's power

to judge evidence without expert help is . . . whether the subject

is within the range of normal experience and knowledge." 818 F.2d

at 1018. As the government's conduct clearly establishes, as

Dr. Vorder Bruegge's testimony strongly reinforces, and further, as

both Free Speech Coalition and Hilton II recognize, determining

whether an image is real or virtually created is not only no longer

within the "range of normal experience and knowledge" of the

average person, but it may also very well be "difficult" for even

experts "[to say] whether the pictures were made by using real

children or by using computer imaging." Free Speech Coalition, 535

U.S. at 254. Additionally, the Supreme Court was not just relying

on the arguments of the parties in Free Speech Coalition; it

specifically said that "[t]he new technology, according to

-63-
Congress, makes it possible to create realistic images of children

who do not exist." Id. at 240 (emphasis added).

The fact is that Nolan is today scientifically unsound,

and slavish insistence upon its outmoded dogma is the equivalent to

insisting on a modern day Galileo conundrum.25 The scientific

evidence available today is overwhelmingly contrary to that which

existed in Nolan's day, and in the present case, it is clearly

established by the uncontradicted testimony of the government's own

expert witness, Dr. Vorder Bruegge, Sentencing Hr'g Tr. 12, 30-31

Apr. 7, 2005 (testifying about a course the expert took at the FBI

laboratory taught by Professor Peter Ratner, who runs a program at

James Madison University on creating computer-generated people, and

also testifying that "the state-of-the-art of image processing is

such that someone . . . with a sufficient, significant amount of

skill, time and willingness to spend the time can create a perfect

fake image."), as well by the pronouncements of Free Speech

Coalition and Hilton II. There is simply no question that today it

is possible to create virtual images of humans that are

indistinguishable from the real thing.26

25
Galileo was tried by the Inquisition in 1633 on suspicion of
heresy for his defense of heliocentrism, Copernicus's theory that
the earth revolved around the sun, rather than that the earth was
the center of the universe.
26
Suggested reading includes: Hany Farid, Digital Doctoring:
How to Tell the Real from the Fake, 3 Significance 162 (2006),
available at http://www.cs.dartmouth.edu/farid/publications/
significance06.pdf ("Today's technology allows digital media to be
altered and manipulated in ways that were simply impossible twenty

-64-
 Furthermore, Nolan's ruling that the government need not

call a photography expert "to negate the mere speculative

possibility of such fakery," 818 F.2d at 1018-19, cannot stand

against the present record. First of all, Nolan conceded that the

pictures were "on their face, representations of what looked like

minors engaging in sexually explicit conduct." Id. at 1017. That

is not the present case. Here, counsel for Appellant refused to

allow his client to be boxed in to such an unwarranted predicament.

In entering a straight plea to the Superseding Indictment,

years ago."); Susan Llewelyn, Seeing Is No Longer Believing,
Christian Science Monitor, Feb. 2, 2005, at 15 ("Today, with the
advent of inexpensive software, the manipulation of digital images
is easier, faster, and harder to detect. . . . The human eye can
now rarely detect [photographic tampering]. That becomes critical
in the court room, where digital photographs are used as evidence
. . . ."). Perhaps a good starting point for the technically
impaired (i.e., most judges) is Timothy J. Perla, Note, Attempting
to End the Cycle of Virtual Pornography Prohibitions, 83 B.U. L.
Rev. 1209 (2003), which among other things contains an excellent
overview and explanation of the technical aspects of this entire
area in fairly understandable terms, and which states:

There is wide agreement that an ordinary person cannot
generally tell a real image from a virtual one. Most
commentators also agree that technology is quickly
evolving to the point where even an expert will not be
able to differentiate real and virtual images.

Id. at 1220; cf. Maria Aspan, Media; Ease of Alteration Creates
Woes for Picture Editors, N.Y. Times, Aug. 14, 2006, at C4
(demonstrating that even professional photo editors are
increasingly duped by altered photographic images); Cheryl
Johnston, Digital Deception, Am. Journalism Rev., May 1, 2003, at
10 (same).

To the extent the majority suggests that the above articles do
not stand for my proposition, I simply rest on the text of the
articles and suggest that the articles be read more carefully.

-65-
Appellant only admitted to possessing one photograph whose

"depictions represent a minor engaging in sexually explicit

conduct" -- he contested "everything else." Exhibit 16 was, of

course, not the one admitted to by Appellant. Thus, contrary to

what the court in Nolan expected of that defendant, id. at 1020 n.4

("The defense produced no expert of its own to show that the

pictures were fakes or other than what they appeared to be."),

under the present state of the law, "[a]fter Free Speech Coalition,

the government must prove that an image depicts actual children[,]

. . . [and] the government is not released from its burden of proof

by a defendant's failure to argue, or by an absence of evidence

otherwise suggesting, the artificiality of the children portrayed.

That the children in the images are real amounts to an element of

the crime which the government must prove, the burden of which

should not be displaced to the defendant as an affirmative

defense." Hilton II, 386 F.3d at 18 (citing Free Speech Coalition,

535 U.S. at 256). In this the government failed and the district

court was unwarranted in filling the gap.

Because the legal and scientific underpinnings of Nolan

are no longer with us, we should allow that case to rest in peace

without further ado. See Vásquez v. Hillery, 474 U.S. 254, 266

(1986) ("Our history does not impose any rigid formula to constrain

the Court in the disposition of cases. Rather, its lesson is that

every successful proponent of overruling precedent has borne the

-66-
heavy burden of persuading the Court that changes in society or in

the law dictate that the values served by stare decisis yield in

favor of a greater objective."). I believe this is an occasion

like that in Carpenters Local Union No. 26 v. United States

Fidelity & Guaranty Co., in which we stated:

When emergent Supreme Court case law calls
into question a prior opinion of another
court, that court should pause to consider its
likely significance before giving effect to an
earlier decision. . . . Let us be perfectly
clear. We value finality, stability and
certainty in the law, particularly in the
field of statutory construction. But stare
decisis is neither a straightjacket nor an
immutable rule; it leaves room for courts to
balance their respect for precedent against
insights gleaned from new developments, and to
make informed judgments as to whether earlier
decisions retain preclusive force.

215 F.3d 136, 141-42 (1st Cir. 2000) (citations omitted); see also

Eulitt v. Me. Dep't of Educ., 386 F.3d 344, 349 (1st Cir. 2004);

Stewart v. Dutra Constr. Co., 230 F.3d 461, 467 (1st Cir. 2000),

rev'd, 543 U.S. 481 (2005); Williams v. Ashland Eng'g Co., 45 F.3d

588, 592 (1st Cir. 1995); Gately v. Massachusetts, 2 F.3d 1221,

1226 (1st Cir. 1993).

We are no longer bound by Nolan.

D. On the Question of Our Sister Courts of Appeal

Although the views of other courts of appeal are usually

heavily persuasive, I submit, with all due respect, that on the

issue before us the other courts of appeal that have considered

this matter have not reached the correct conclusion. Again with

-67-
due respect to those who differ from me, arithmetic is not

determinative of scientific truth. It made no difference how many

cardinals said that the sun revolved around the earth, it did not

make this asseveration a scientific truth. And it is scientific

truth that trumps the day on the issue before this court. It is

now beyond scientific dispute that it is possible to create virtual

photographic images that can only be detected (with difficulty) by

experts. Thus, experts are required before factfinders can make

their findings on this issue.27 I do not recall any mention of

this scientific knowledge, one way or another, in any of the

appellate opinions cited in opposition to my views.28

27
It is not unusual to require expert testimony -- or at least
testimony of an appropriately knowledgeable lay person -- in other
areas of the law when an opinion is based on specialized knowledge
and the assistance of an expert is indispensable. See, e.g., Fed.
R. Evid. 701, 702; United States v. Walters, 904 F.2d 765, 770 (1st
Cir. 1990) (requiring expert testimony or the opinion of a
knowledgeable lay person to establish the illicit nature of a
substance); United States v. Dixon, 185 F.3d 393, 406 (5th Cir.
1999) (holding that expert testimony would be needed to explain a
defendant's medical records in order to show that he satisfied the
test for insanity); Reed v. Sullivan, 988 F.2d 812, 819 (8th Cir.
1993) (finding that expert testimony was needed to establish
whether a disabled person could perform certain sedentary jobs);
Salem v. United States Lines Co., 370 U.S. 31, 32 (1962) (requiring
expert testimony to prove negligence on the part of a ship owner
who had failed to provide railings on a ladder leading to a crows
nest).
28
Some of the cases respond to the argument that due to
technological advances, Free Speech Coalition requires the use of
expert testimony to prove that an image is real by claiming that
the Supreme Court in that very case said that the hypothesis that
real images are indistinguishable from virtual images is "somewhat
implausible." See Kimler, 335 F.3d at 1142; United States v.
Farrelly, 389 F.3d at 655. These cases, however, misquote Free
Speech Coalition. The "hypothesis" that the Supreme Court found

-68-
 For the reasons stated above, I respectfully dissent. I

would reverse and remand this case for resentencing.

implausible is that "virtual images promote trafficking in works
produced through the exploitation of real children," not that real
images are indistinguishable from virtual ones. 535 U.S. at 254.

-69-