United States v. Al-Awadi

873 F.3d 592, 2017 WL 4564215, 2017 U.S. App. LEXIS 20035
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 13, 2017
Docket16-2643
StatusPublished
Cited by7 cases

This text of 873 F.3d 592 (United States v. Al-Awadi) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Al-Awadi, 873 F.3d 592, 2017 WL 4564215, 2017 U.S. App. LEXIS 20035 (7th Cir. 2017).

Opinion

WILLIAMS, Circuit Judge.

While he .was the only adult in a room of napping children at the daycare where he worked, Ali Al-Awadi pulled back the underwear of one young girl and took pictures. He claimed at trial that he did so because she injured herself on his watch while she was playing on his lap and he was checking for injury. The jury did not believe him and convicted him of making and attempting to make child pornography. He appeals his convictions. Several of his arguments concern evidence the jury heard that Al-Awadi also digitally penetrated the young girl, an act for which he was not charged in this case. Although he argues the jury received the wrong standard when it was instructed to determine whether it was “more likely than not” that Al-Awadi had molested the girl, the pattern jury instruction given to the jury accurately told the jury how to assess evidence of acts other than charged crimes. The jury was also instructed that the government had to prove the elements of the charged crimes beyond a reasonable doubt for Al-Awadi to be found guilty. Al-Awadi also argues that the jury heard too much evidence of the molestation. However, the evidence was permissible because he placed his intent in taking .the pictures at issue, the molestation evidence was relevant to his intent, and the government’s evidence was not unduly repetitive. Finally, sufficient evidence supports the jury’s conclusion that Al-Awadi used the young girl to engage in sexually explicit conduct for the purpose of producing a visual depiction of the conduct.

I. BACKGROUND

Soon after he began working at a daycare, other teachers expressed concern about twenty-year-old Ali Al-Awadi’s interactions with young female children there. Al-Awadi was cautioned about sitting children on his lap in the classroom, picking up children who could walk, and taking female children into the bathroom.

Al-Awadi ■ took a particular interest in one young girl in the kindergarten room, four-year-old Child Victim One (“CV1”). On August 21, 2014, the daycare was shorthanded of staff, and Al-Awadi took advantage. Al-Awadi was sent to cover the kindergarten room during the substitute teacher’s lunch. While he was the only adult in the room and it was darkened for the children to nap, he sat down next to CV1. When she fell asleep, Al-Awadi opened her pants and pulled her underwear away from her. He then took two pictures of her vagina. He thought the quality of the pictures was poor so he took two more. Al-Awadi then placed his finger in CVl’s vagina. This woke up the young girl.

When the teacher returned to the classroom, Al-Awadi went to his car for about thirty minutes. At some point, he deleted the pictures from his cellphone.

While Al-Awadi was still out of the room, CV1 told .the teacher, “It hurts down there,” while pointing to her vagina. When the teacher asked why, CV1 responded, “It hurts down there because Mr. Ali touched it.” The teacher reported this to the school secretary, who for some reason asked Al-Awadi to return to the kindergarten room. The teacher asked CV1 to repeat what she had said, which she did. .Al-Awadi then picked CV1 up, sat her on his lap, and said, “no, thank you.” CV1 left his lap.

The secretary also informed the daycare’s assistant director, who then spoke with Al-Awadi. He claimed that he and CV1 had been playing, that she jumped on his lap and wrapped her legs around his arm, and that when he pushed her off, she pinched her vagina on his watch.

After daycare, CV1 told her mother she had pain in her vagina and later informed her of what Al-Awadi had done. At the hospital, the nurse who examined CV1 noted swelling and several areas of redness that were consistent with digital penetration. A pediatrician who later examined CV1 said it was unlikely that her injury was caused by a watch.

Law enforcement recovered the deleted images from Al-Awadi’s phone, and a DNA test concluded that Al-Awadi’s DNA was consistent with that found on CVl’s underwear. Law enforcement also discovered that Al-Awadi had viewed child pornography in the past.

A second superseding indictment charged Al-Awadi with four counts of sexual exploitation of a minor through the production of child pornography, in violation of 18 U.S.C. § 2251(a), and four counts of attempted production of child pornography, in violation of 18 U.S.C. § 2251(e). Before trial, the government filed notice of its intent to use evidence of Al-Awadi’s molestation of CV1, and the district court admitted this evidence under Federal Rules of Evidence 404(b) and 414(a).

Multiple witnesses testified for the government at trial, including CV1 who was then six years old. Al-Awadi testified in his own defense. A jury convicted Al-Awadi on three counts of sexual exploitation by producing child pornography and on all four of the attempt counts. The district court vacated three of the attempt convictions because they were lesser included offenses of the completed offenses. The judge sentenced Al-Awadi to concurrent terms of 324 months’ imprisonment and fifteen years of supervised release on each count. Al-Awadi appeals.

II. ANALYSIS

A. No Error in Jury Instructions

Al-Awadi first argues that the jury should not have received the instruction that reads as follows, with our underline added to the words with which Al-Awadi especially takes issue:

You have heard testimony and evidence that the Defendant committed crimes, acts and/or wrongs other than the ones charged in- the Indictment. Before using this evidence, you must decide whether it is more likely than not that the Defendant did the crimes, acts, and/or wrongs that are not charged in the Indictment. If you decide that he did, then you may consider this evidence to help you decide the Defendant’s intent to produce or attempt to produce child pornography, absence of mistake in dealing with the alleged victim or opportunity. You may not consider it for any other purpose. Keep in mind that the Defendant is on trial here for sexual exploitation and attempted sexual exploitation of a child, not for the other crimes, acts, or wrongs.

This instruction is our Seventh Circuit Pattern Criminal Jury Instruction 3.11, “Evidence of Other Acts by Defendant,” with Al-Awadi’s case-specific information added. Al-Awadi maintains that the “more likely than not” language in the instruction improperly directed the jury to apply the preponderance of the evidence standard to intent, which is an element of the charged offenses. Especially because the evidence of molestation had been admitted as direct evidence of the charged crimes, Al-Awadi maintains that the result of the instruction was that the jury could find the intent element of the charged crimes satisfied by a preponderance standard rather than by the constitutionally required standard of beyond a reasonable doubt.

Al-Awadi did not object at trial to this instruction. The government first contends that Al-Awadi waived any right to our review of the instruction.

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873 F.3d 592, 2017 WL 4564215, 2017 U.S. App. LEXIS 20035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-al-awadi-ca7-2017.