United States v. Anthony William Denham

437 F. App'x 772
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 10, 2011
Docket10-14530
StatusUnpublished
Cited by1 cases

This text of 437 F. App'x 772 (United States v. Anthony William Denham) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. Anthony William Denham, 437 F. App'x 772 (11th Cir. 2011).

Opinion

PER CURIAM:

After a jury trial, Anthony William Den-ham appeals his convictions for inducing a minor to engage in sexually explicit conduct for the purpose of producing child pornography and knowingly receiving child pornography by cellular telephone. On appeal, Denham argues that the district court committed reversible error when it: (1) denied his motion for a mistrial after the government’s cooperating witness told the jury Denham was in jail, and (2) limited Denham’s cross-examination of that witness as to her bias and motive for testifying. After review, we affirm.

I. BACKGROUND FACTS

A.Offense Conduct

Federal Bureau of Investigation (“FBI”) agents received a complaint from Elizabeth Heffner that her boyfriend used social networking web sites to meet a fifteen-year-old female, S.A., and then traded S.A. prepaid cell phone minutes for nude pictures of S.A. During an investigation, FBI agents found five pictures of S.A. either nude or partially nude and displaying her genitals on Denham’s cell phone.

In an interview with FBI agents, S.A. explained that Denham befriended her on the Internet. Denham eventually asked S.A. to take the pictures of herself using her cell phone camera and then send them to his cell phone. S.A. said she sent Den-ham about thirty pictures of herself. In exchange, Denham sent her a cell phone card.

Unbeknownst to S.A., Denham used S.A.’s pictures to create a profile on a social networking site. The web page invited men to send either prepaid phone minutes or checks or money orders in exchange for sexually explicit pictures of S.A. Denham also entered chat rooms pretending to be S.A. and offered to send sexually explicit photographs in exchange for cell phone minutes or money orders.

A federal grand jury returned a superseding indictment charging Denham with inducing a minor to engage in sexually explicit conduct for the purpose of producing child pornography, in violation of 18 U.S.C. § 2251(a) and (e) (“Count One”); knowingly receiving child pornography by cellular telephone, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1) (“Count Two”); and knowingly possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2) (“Count Three”).

B. Pre-trial Motion in Limine

Prior to trial, Denham made an oral motion in limine to prohibit any reference to his being detained or jailed during the investigation or criminal proceedings. The government did not oppose Denham’s motion and suggested redacting any mention of Denham’s incarceration in the trial exhibits. The government also noted that it had instructed its cooperating witness, Elizabeth Heffner, not to refer to the fact that Denham was in jail. The district court granted Denham’s motion in limine.

C. Motion for a Mistrial

During trial, at the prosecution’s request, the district court instructed witness Heffner that she could not tell the jury that Denham was in jail. Heffner responded that she understood. On direct examination, Heffner explained that (1) Denham was her boyfriend and the father of her child; (2) Denham obtained porno *774 graphic photographs from underage girls whom he met online; and (3) Denham, by pretending to be an underage girl, induced men to send him money orders and cellular telephone cards in exchange for those pornographic photographs. Heffner admitted participating in Denham’s “scam” by helping him obtain money orders and knowing that the scam was illegal and involved underage girls.

When the prosecutor asked Heffner why she had reported Denham to the FBI, Heffner’s response mentioned that Den-ham had been in jail, as follows:

Q: Okay. And why did you — why’d you call the FBI?
A: I was mad at Anthony.
Q: When you say you were mad at him, can you tell us why you were mad at him?
A: Because we broke up and he went to jail and—

Denham objected and moved for a mistrial. Following a recess, the district court denied Denham’s mistrial motion, explaining that the “fleeting reference” to jail had no detail or further discussion, was not intentionally elicited and was not “likely to influence the outcome of the trial.” The district court gave a curative instruction directing the jury to disregard Heffner’s answer to the prosecutor’s last question. The prosecutor then asked Heffner why she was mad at Denham, and Heffner explained that it was because they broke up.

Heffner also admitted that she did not want to testify against Denham and that she was doing so only because she was subpoenaed. Although Heffner denied being made any promises in exchange for her testimony, she hoped that she would not be prosecuted.

D. Cross-Examination of Heffner

On cross-examination, Heffner denied that she was trying to help the government in order to avoid prosecution. This exchange occurred:

Q: Okay. You don’t want them to prosecute you on this, right?
A: I would — no, because of my daughter.
Q: Okay. Because if they prosecuted you on this, you know that you’re facing a lengthy prison sentence, right?
A: Yes.
Q: If they prosecuted you with the charges that they’re prosecuting Mr. Denham with and you got convicted of enticing or coercing a minor in engaging in sexually explicit conduct—

The government objected. At a side bar conference, defense counsel admitted that she planned to elicit from Heffner the specific penalties Heffner faced if she was prosecuted on the counts charged against Denham and argued that this information was relevant to Heffner’s motive for testifying.

The district court sustained the government’s objection. The district court ruled that defense counsel could question Heff-ner about whether she could face “a substantial prison term” or even “many years of imprisonment,” but that it was not appropriate to advise the jury of the specific penalties. The district court explained that the jury was not “equipped to understand, for example, that those type sentences ordinarily don’t run consecutively” and the information would confuse the jury." The district court concluded that “any probative value of advising them of the specific terms of imprisonment is outweighed by the confusion and prejudice.”

Defense counsel continued cross-examining Heffner, as follows:

*775 Q: Ms. Heffner, you understand that you can be prosecuted in this case, correct?
A: Yes.
Q: Okay. And so knowing that, you are trying to do your best not to get prosecuted, correct?
A: Yes.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Denham v. United States
181 L. Ed. 2d 560 (Supreme Court, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
437 F. App'x 772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-anthony-william-denham-ca11-2011.