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Comments on Current Events In Criminal Law from the Federal Criminal Courts in Texas

September 24, 2007


Criminal Defense Lawyers Must Closely Examine Evidence In Child Pornography Cases to Rule Out Virtual Images: Government Retains Burden to Prove Images of a Real Child.

It is a federal crime to possess child pornography. See: 18 U.S.C. § 2252(a)(B). See also: Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. § 2251.

The United States Supreme Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389 (2002) held unconstitutional those provisions of § 2252(a)(B) that extended child pornography to any sexually explicit image that “conveys the impression” that it depicts “a minor engaging in sexually explicit conduct.” Id., 535 U.S. at 258. See also: United States v. Rodriquez-Pacheco, 475 F.3d 434 (1st Cir. 2007).

Prior to Ashcroft v. Free Speech Coalition, the federal circuits had uniformly adopted a position that the government did not have to produce “expert testimony” beyond the actual images to carry its burden that the images depicted real children. See, e.g., United States v. Nolan, 818 F.2d 1015, 1018-20 (1st Cir. 1987). The court in Nolan rejected the argument the government had “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., at 1016. The Nolan court held that the mere possibility that the images could have been produced by use of technology, without more, was insufficient to overcome the traditional jurisprudence that the trier of fact could make a reasonable inference, based on experience and common sense, that the images involved real children. Id., at 1018-20.

Ashcroft v. Free Speech Coalition produced a plethora of claims that the Supreme Court mandate required the government to produce expert opinion testimony that the alleged pornographic image is of a real child and not “virtual” produced child. See: United States v. Slanina, 359 F.3d 356, 357 (5th Cir. 2004)(per curiam)[Free Speech Coalition did not establish a per se rule that, absence direct evidence of identity, expert testimony is required to establish that the images of alleged child pornography are of real, and not virtual, children]. See also: United States v. Denton, 328 F.3d 454, 455 (8th cir. 2003)(per curiam); United States v. Kinder, 335 F.3d 1132, 1142 (10th Cir. 2003); United States v. Farrelly, 389 F.3d 649, 653-54 (6th Cir. 2004); United States v. Irving, 452 F.3d 110 (2nd Cir. 2005). After some preliminary confusion (initially adopting a per se rule requiring expert testimony), the First Circuit joined the chorus of rejection relative to the expert testimony requirement issue. See, United States v. Hilton, 386 F.3d 13 (2004).

More recently in Rodriquez-Pacheco the First Circuit revisited the issue as it relates to sentencing. In that case the defendant plead guilty and was sentenced to 30 months (and three years of supervised release) for a § 2252(a)(B) violation. The prosecution at sentencing alleged that the defendant possessed at least ten images of child pornography on the hard drive of his computer. Under U.S.S.G. § 2G2.4(b)(2)(2002), the ten images increased defendant’s sentencing guideline range by two-levels. The appeals court noted in that the guideline was the “appropriate first step in the court’s sentencing determination.” Id., 475 F.3d at 436.

The defendant in Rodriquez-Pacheco presented one issue for appeal: absent direct evidence, the government was required at sentencing to produce expert testimony that a particular image is of a real, non-virtual child in order to satisfy its burden of proof by a preponderance of the evidence. Id. [defendant relying upon Free Speech Coalition]. The First Circuit rejected the argument, saying:

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. Id., at 437.

While Rodriquez-Pacheco entered a straight plea of guilty to the requisite knowing possession of at least one image of child pornography, he did not agree 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). Id. Operated under the First Circuit’s previous rule in United States v. Hilton (Hilton 1), 363 F.3d 58, 65-66 (1st Cir. 2004)[Free Speech Coalition required expert testimony], the government was prepared in Rodriquez-Pacheco to “meet its burden of proof beyond a reasonable doubt.” Id.

The government first presented a sample of 234 pornographic images removed from defendant’s computer. Prosecutors called Dr. Pedro Jaunarena-Perez, a pediatrician, “who testified using the Tanner scale that ten of the images obtained from defendant’s computer were of children under age eighteen.” Id., at 437-38. The First Circuit in Hilton II recognized that the Tanner Scale was developed through an analysis of large numbers of children both in the United States and throughout the world. Id., 386 F.3d at 18-19.

The government then presented Dr. Richard Vorder Bruegge, an FBI expert, who “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 of an actual person. There is no suggestion the expert did not have an opinion; he simply was not asked for it.” Rodriquez-Pacheco, supra, at 438.

Relying strongly on Free Speech Coalition, the defendant argued that as a matter of law the prosecution had a burden to establish with expert testimony that Exhibit 16 was an image of an actual child. The appeals court rejected that argument, saying:

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 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. Id.

The First Circuit then addressed the impact of Free Speech Coalition. Citing the Sixth Circuit’s decision in United States v. Farrelly, supra, the First Circuit reiterated its position in Nolan that the issue of whether a particular image “is of a virtual trial or of a real child” is an evidentiary matter “to be determined by the trier of fact.” Rodriquez-Pacheco, supra, at 438. The appeals court noted that the government’s burden to establish guilt at trial is “beyond a reasonable doubt” while at sentencing the government must show by a “preponderance of evidence” that the child is a real child. Id. See also: U.S.S.G. § 6A1.3(2002); United States v. Zuleta-Alvarez, 922 F.2d 33, 37 (1st Cir. 1990).

The issue of whether a particular image involves a virtual or real child is quite significant. The United States Supreme Court in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348 (1982) held that utilizing real children in the production of child pornography harmed the children. Id., 458 U.S. at 759-60, 102 S.Ct. at 3348. With the enactment of the CPPA, Congress sought to punish possession of “virtual images” to the same degree as possession of real children images based on the “harm” analysis. In declaring this provision CPPA unconstitutional, the Court in Free Speech Coalition ruled that virtual images do not harm children. Id., 535 U.S. at 236, 122 S.Ct. at 1389.

The First Circuit in Rodriquez-Pacheco, however, pointed out that the Free Speech Coalition court “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.” Id., at 440.

The First Circuit’s reading of Free Speech Coalition is in line with every circuit that has addressed the issue. The Second Circuit in United States v. Irving, supra, embraced the same reading, saying:

… Irving urges that the holding of Free Speech Coalition necessarily created a bright-line rule requiring the government to present evidence, other than the unlawful images themselves, to prove beyond a reasonable doubt that the pictures were created using real children. A careful reading of the Supreme Court's opinion does not support Irving's view of it. 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 254-56, 122 S.Ct. 1389.

Nor does Irving's interpretation of Free Speech Coalition find support in our sister circuits. Since the First Circuit vacated its decision in United States v. Hilton, 363 F.3d 58 (1st Cir.), vacated, 386 F.3d 13 (1st Cir.2004), which had adopted a rule similar to the one Irving urges us to adopt, it now appears that none of the circuits that have addressed the effect of Free Speech Coalition on the government's burden of proof in child pornography prosecutions has adopted the bright-line rule pressed by Irving in this case; that is, that Free Speech Coalition increased the government's burden of proof regarding the actuality requirement.

We have not had occasion to address the effect of Free Speech Coalition on the government's evidentiary burden with respect to the actuality requirement. On the basis of the facts of this case and our own interpretation of Free Speech Coalition, we reject Irving's claim that the government must present extrinsic evidence. Although Irving's objections to the presentence investigation report included a claim that the government failed to carry its burden of proving beyond a reasonable doubt that certain images did contain real children, appellant points to no evidence suggesting that the images were not created using actual children. Further, the superseding indictment specifically made reference to the constitutionally valid definition of child pornography. Id., 452 F.3d at 121.

The government has sweeping discretion in how it presents its case in child pornography prosecutions. It can rely upon the images, videos, or photographs without expert testimony or it can present expert testimony that the alleged pornography involves real children. Rodriquez-Pacheco made a compelling argument - one that was accepted by the dissent - that technology has progressed so far that the per se rule relieving the government of the requirement to show with expert testimony that the image is of a real child should be abandoned. The First Circuit rejected this argument with the following reasoning:

There is no reason, much less a compelling reason based on new facts, to abandon that [Nolan] rule, even assuming that new fact 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, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 412, 52 S.Ct. 443, 76 L.Ed. 815 (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. Id., at 442. [Emphasis supplied].

The First Circuit’s resistance to the technology advancement argument is weak, lending credence to the charge that courts are often influenced by the politics (in this case, child pornography which is a hot political button) rather than the constitutionality of an issue. The court reasoned that “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.” Id., at 443.

A constitutional issue should not be resolved by looking at the “market” for child pornography. The issue is not what peddlers of child pornography may or may not do. The issue is whether the government should be required to present expert testimony to determine if a particular image is of a real or virtual child. Virtual imagery technology has come a long way. Who can tell the difference between the virtual image of Mighty Joe Young and a real lowland gorilla? The First Circuit added:

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. Id., at 443.

The appeals court concluded its virtual-vs-real child analysis by saying that the government continues to retain the burden to prove that the pornographic image is of a real child. However, “’[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’.” Id., at 444 [quoting Nolan, 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.”]


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