United States v. Andrews

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Andrews No. 03-5088 ELECTRONIC CITATION: 2004 FED App. 0292P (6th Cir.) File Name: 04a0292p.06 Mark A. Wohlander, John Patrick Grant, ASSISTANT UNITED STATES ATTORNEYS, Lexington, Kentucky, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ OPINION _________________ UNITED STATES OF AMERICA , X MARTHA CRAIG DAUGHTREY, Circuit Judge. The Plaintiff-Appellee, - defendant, Lonny Andrews, was convicted on 27 counts of a - - No. 03-5088 28-count indictment that charged him with the production, v. - receipt, and possession of child pornography, in violation of > 18 U.S.C. §§2251(b), 2252(a)(2), and 2252(a)(4)(B) , respectively. Under count 28, he was ordered to forfeit items LONNY J. ANDREWS, - Defendant-Appellant. - and equipment utilized in committing those offenses. On appeal, he challenges only his convictions on the first two N counts, contending that §2251(b) is unconstitutional as Appeal from the United States District Court applied to him because the government failed to establish a for the Eastern District of Kentucky at Lexington. sufficient nexus between his alleged activities and interstate No. 02-00105—Karl S. Forester, Chief District Judge. or foreign commerce, thereby depriving the district court of jurisdiction to try the case. He also argues that the district Submitted: March 10, 2004 court erred in permitting the introduction of certain photographs. We find no basis on which to overturn the Decided and Filed: September 2, 2004 jury’s verdict and affirm.

Before: BOGGS, Chief Judge; DAUGHTREY, Circuit FACTUAL AND PROCEDURAL BACKGROUND Judge; ALDRICH, District Judge.* The record in this case establishes that defendant Andrews _________________ lived in a four-bedroom trailer in Nicholasville, Kentucky, with his wife, his seven-year-old step-daughter, and the COUNSEL couple’s two-year-old daughter. In May 2002, his two nieces, aged 12 and 16, came to Andrews’s home from Alabama to ON BRIEF: Richard R. Melville, PRATT & MELVILLE, spend the summer. Apparently, the 16-year-old left the house Lexington, Kentucky, for Appellant. Charles P. Wisdom, Jr., with the defendant’s wife at various times, leaving Andrews in the house with the other children. On one occasion, he took advantage of their absence to show the seven-year-old * and the 12-year-old a “video of naked people” engaged in The Honorab le Ann Aldrich, United States District Judge for the sexual relations. After the two children watched the video, No rthern D istrict of O hio, sitting by designation.

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Andrews told them that he wanted them to do similar things “visual depictions,” each of which was described in the with him and forced his step-daughter to perform oral sex on indictment as involving “a minor female engaged in the him. At another time, Andrews showed the girls a picture of lascivious exhibition of her genitals or pubic area.” The hard a “naked teenager” from his computer’s “picture gallery,” drive on Andrews’s computer also contained 107 photographs telling them that he had received the picture from a friend. of his niece and his step-daughter, mostly of the girls’ genitals and buttocks, that Andrews had directed the girls to take of Andrews had purchased a small “pen camera” at Wal-Mart each other using his pen camera. that he could use to produce photographs on his computer screen. Andrews taught his niece and step-daughter how to The detective found the pen camera attached to Andrews’s use the pen camera and, on two occasions, he told them to computer. Nearby, he also found a compact disk containing take pictures of each other’s “privates” while they were over 200 pornographic images of unidentified prepubescent naked. The first time, Andrews watched his niece take girls, defined as under the age of 12. Research verified that pictures of his step-daughter. After the girls took the pictures these images were available on the Internet and could be of each other, Andrews loaded the pictures into his downloaded onto a disk using the disk “burner” found among computer’s “picture gallery.” These pictures could also be the defendant’s computer equipment. They appeared to have uploaded onto the Internet, although there was no evidence been downloaded from the Internet in December 1999 and presented at trial that Andrews actually did so. Andrews January 2000. Once, in the fall of 2000, almost two years frightened the two children into silence by threatening that “if before the events at issue here took place, Stacy Andrews was [they] ever told on him that he – that he would go to jail and using the computer and happened upon an image of a young, it would be all [their] fault and that he would beat [them].” nude child. According to her testimony at trial, she told her husband to remove the image from the computer or she would Nevertheless, the younger of the two nieces apparently “throw the computer out in the front yard.” confided in her older sister, who then told Andrews’s wife, Stacy, that the 12-year-old had something to tell her. From Lonny Andrews testified at trial, denying that he had her ensuing conversation with the 12-year-old, Stacy enticed his niece or his step-daughter to use his pen camera to Andrews learned that her husband was making the two take the pornographic photos. He also denied uploading their children take sexually explicit photos of each other with the pictures onto the computer or the internet, or downloading the pen camera. She contacted the local sheriff’s office and filed pornographic images of prepubescent girls onto the compact a petition for an emergency protective order on behalf of the disk . Because the file on the compact disk was labeled children. The order was granted and, as a result of its “Jimmy,” he argued that a friend of his named Jim must have directive, Lonny Andrews was removed from the residence. downloaded the images while he was staying at the Andrews house. The jury nevertheless convicted the defendant on all After the defendant’s departure, the sheriff searched the 27 counts of the indictment, presumably finding that his trailer with Stacy’s consent and seized various items, testimony was not credible, and the district court imposed including the defendant’s computer, some compact disks, consecutive sentences totaling 405 years, pursuant to hard disk drives, and the pen camera – all of which had been sentencing guidelines mandated by Congress as part of the manufactured or acquired from out-of-state or abroad. During Sex Crimes Against Children Prevention Act, and enhanced the search, a detective examined Andrews’s computer there by a finding that Andrews had obstructed justice by testifying on the premises, opened some electronic files, and found falsely at trial. The defendant now appeals only his No. 03-5088 United States v. Andrews 5 6 United States v. Andrews No. 03-5088

convictions for the production of child pornography in facts of this case. Corp was a 23-year-old defendant who was violation of 18 U.S.C. § 2251(b), as set out in counts one and prosecuted under 18 U.S.C. §2252(a)(4)(B) for possessing two of the indictment. child pornography, consisting of photographs of his 17-year- old girlfriend and his 26-year-old wife engaged in consensual DISCUSSION sexual activity. Id. at 326. Section 2252(a)(4)(B) provides that an offender will be punished if he or she At the time of Andrews’s trial, § 2251(b) provided as follows: . . . knowingly possesses 1 or more books, magazines, periodicals, films, video tapes, or other matter which Any parent, legal guardian, or person having custody or contain any visual depiction that has been mailed, or has control of a minor who knowingly permits such minor to been shipped or transported in interstate or foreign engage in, or to assist any other person to engage in, commerce, or which was produced using materials which sexually explicit conduct for the purpose of producing have been mailed or so shipped or transported, by any any visual depiction of such conduct shall be punished as means including by computer, if-- provided under subsection (d) of this section, if such parent, legal guardian, or person knows or has reason to (i) the producing of such visual depiction involves know that such visual depiction will be transported in the use of a minor engaging in sexually explicit interstate or foreign commerce or mailed, if that visual conduct; and depiction was produced using materials that have been mailed, shipped, or transported in interstate or (ii) such visual depiction is of such conduct[.] foreign commerce by any means, including by computer, or if such visual depiction has actually been Federal jurisdiction in Corp was alleged to arise from the transported in interstate or foreign commerce or mailed fact that the photographic paper on which the pornography (emphasis added). was produced had been manufactured out-of-state, specifically in Germany. Corp, 236 F.3d at 326. Corp argued Federal jurisdiction over the offenses charged in counts one that the statue was unconstitutional on its face and as applied and two was based on the fact that Andrews purchased his in his case because it exceeded Congress’s Commerce Clause computer from New Jersey and that the pen camera was made powers. Id. at 327. In reviewing this claim, the Corp court in China. Andrews does not argue that § 2251(b) is facially applied the framework developed by the Supreme Court in unconstitutional, instead contending that it is unconstitutional United States v. Lopez, 514 U.S. 549 (1995) (striking down under the Commerce Clause as applied to him because his the Gun-Free School Zones Act because Congress exceeded activities did not substantially relate to interstate commerce. its power under the Commerce Clause), and in United States Questions of federal jurisdiction are reviewed de novo by this v. Morrison, 529 U.S. 598 (2000) (striking down the civil court. See United States v. Brown, 276 F.3d 211, 214 (6th remedy provision of the Violence Against Women Act as Cir. 2002), cert. denied, 535 U.S. 1079 (2002). unconstitutional under the Commerce Clause), to hold that §2252(a)(4)(B) was facially constitutional. See Corp, 236 Andrews relies almost exclusively on our opinion in United F.3d at 331-332. On the other hand, the court also held that States v. Corp, 236 F.3d 325 (6th Cir. 2001), to support his because the defendant’s activity was not substantially related argument that § 2251(b) is unconstitutional as applied to the to interstate commerce, the statute was unconstitutional as No. 03-5088 United States v. Andrews 7 8 United States v. Andrews No. 03-5088

applied to the facts in his case. But in doing so, the court otherwise sexually abused? Was there a record that emphasized that those facts were unique and that Corp’s defendant repeatedly engaged in such conduct or other conduct was not the type of activity that Congress had sexually abusive conduct with children? Did defendant intended to prohibit: move from place to place, or state to state, and repeatedly engage in production of such pictures of children? These Under the undisputed circumstances here, Corp was not questions are relevant to a determination on a involved, nor intended to be involved, in the distribution case-by-case basis about whether the activity involved in or sharing with others of the pictures in question. a certain case had a substantial effect on commerce. Sauntman [the seventeen-year-old] was not an "exploited child" nor a victim in any real and practical sense in this Id. at 333. case. In the other cases that have addressed this issue, the courts were faced with the much more threatening Although not all the Corp questions are pertinent here, an situation where an adult was taking advantage of a much inquiry along the lines it suggests produces a stark distinction younger child or using the imagery for abusive or between the facts in Corp and the facts in this case. Andrews semi-commercial purposes . . . . was clearly involved in exactly the type of child-exploitive and abusive behavior that Congress sought to prohibit in Corp was not alleged to be a pedophile nor was he § 2251(b), using computer equipment that had been shipped alleged to have been illegally sexually involved with in interstate commerce. Andrews first forced two children minors other than Sauntman, who was merely months aged 12 and under to watch sexually explicit photographs that away from reaching majority. Clearly, Corp was not the presumably had been transmitted over interstate lines. He typical offender feared by Congress that would become then compelled them to engage in and to photograph similar addicted to pornography and perpetuate the industry via sexually explicit behavior, undoubtedly for the purpose of interstate connections. Under these circumstances, the transmitting those photographs in the same manner.1 The government has failed to make a showing that Corp's sort children were vulnerable not only because of their age but of activity would substantially affect interstate also because they were under his care and control at the time, commerce. and their cooperation was clearly the result of coercion and outright threats to their safety. In addition, Andrews was in Corp, 236 F.3d at 332-33. possession of several hundred pornographic photographs Moreover, the Corp opinion contains a suggestion that in future cases, courts should undertake the following 1 examination in order to ensure that the jurisdictional reach of As the Second Circuit noted in Un ited States v. Holston, 343 F.3d the statute is properly circumscribed: 83, 88-90 (2nd C ir. 2003), Congress has made legislative findings documenting that “there is an extensive co mmercial m arket in child Was the activity in this case related to explicit and pornography and that much of the m aterial that feeds this m arket is ‘homegrown,’ that is, produced by amateur photographers . . . . Because graphic pictures of children engaged in sexual activity, much of the child pornography that concerned Congress is homegrown, particularly children about fourteen years of age or untraceable, and enters the national market surreptitiously , we conclude under, for commercial or exploitive purposes? Were that Congress, in an attempt to halt interstate trafficking, can prohibit local there multiple children so pictured? Were the children production that feeds the national market and stim ulates demand, as this production sub stantially affects interstate comm erce.” No. 03-5088 United States v. Andrews 9 10 United States v. Andrews No. 03-5088

depicting unidentified children who appeared to be under the suggest that the photographs were unreliable, the district court age of 12. As early as two years before his arrest on these cannot be charged with committing error in failing to charges, his wife had seen the pornographic image of a child intervene sua sponte to prevent their introduction into on his computer. evidence, or in declining to order a new trial on the same basis. Given the scope of the evidence in the record, we have no doubt that the government established a sufficient nexus CONCLUSION between the activity described in the first two counts of the indictment and interstate commerce to establish jurisdiction For the reasons set out above, we AFFIRM the judgment of in this case. We therefore find no merit to the defendant’s the district court in all respects. argument that § 2251(b) was unconstitutional as applied to that activity. Nor do we find reversible error in connection with the admission into evidence of Exhibit 4, which consisted of the sexually explicit photos of Andrews’s seven-year-old step- daughter and his 12-year-old niece. Because Andrews did not object to the introduction of the photos at trial, we review the admission of the photos only for plain error.2 See United States v. Cowart, 90 F.3d 154, 157 (6th Cir. 1996); FED . R. EVID . 103(d) (“Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.”). He complains that the detective who seized his computer tampered with the photos, based on the fact that the dates on some of the photographs had been altered when the files were examined at his home. However, there is no other evidence to suggest tampering, and the detective’s testimony that he had not altered the photographs could have been discredited on cross- examination but was not. The jury clearly found credible the detective’s testimony that no alteration had occurred. Without a timely objection and the production of some evidence to

2 Although the defendant did not object to the introduction of Exhibit 4, he later moved for a judgment of acquittal based on the fact that “[t]he dates of downloading of some of the PenCam pictures on July the 11th and July 14th were after the defendant had been vacated from the residence, and the testimony was that he hadn’t been back.” The co urt denied the motion.