United States v. Bartos

51 F. App'x 957
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 22, 2002
DocketNo. 01-2145
StatusPublished
Cited by1 cases

This text of 51 F. App'x 957 (United States v. Bartos) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Bartos, 51 F. App'x 957 (6th Cir. 2002).

Opinion

PER CURIAM.

Defendant-Appellant Gary Lynn Bartos (“Bartos”) was tried and found guilty of knowingly attempting to receive a videotape containing child pornography through the mail in violation of 18 U.S.C. § 2252(a)(2). Bartos now asserts numerous trial related errors and seeks reversal [959]*959of his conviction. For the reasons stated herein, we find no error and affirm.

I. BACKGROUND

In 1999, postal inspectors began a sting operation to elicit responses from persons interested in child pornography. To that end, inspector Paul Durand placed advertisements in various magazines purveying sexually explicit content.1 The parties do not indicate precisely which advertisement in which magazine enticed Bartos to respond, but after the advertisements were published, “Gary” addressed correspondence to “Paul” at the post office box provided in the advertisements. “Gary” and “Paul” subsequently engaged in a series of correspondence in which “Gary” indicated his interest in sexually explicit materials containing “young stuff,” particularly “family fun tapes, father/daughter, mother/son, brother/sister.”2

In January 2000, “Gary” sent five dollars to obtain a videotape of the youngest females “Paul” had available, but rescinded the order before the tape was sent. “Gary’s” money was returned with a letter expressing that his nervousness was understandable, because the tapes depicted girls “who haven’t reached puberty yet.”

In April 2000, “Gary” reinitiated contact with the following letter:

I don’t know if you still have my letters. I hope you remember me. About 3 months ago you were going to sell me a tape for $5 and then more at your $25 if I wanted another but I chickened out. Is it too late for me to buy the tape? I got cold feet before but I’m still curious about seeing the tapes. I[’]U buy another at your $25 price if its good. I[’]d love to see action scenes. Remember what I said I wanted to see?
I swear I’m not a member of any law enforcement agency or I am not involved in any attempt to intrap [sic] another.

J.A. 60.

“Paul’s” reply indicated “I think I remember you wanted young girls, but unfortunately I threw away your letters, so I can’t remember age groups/aetion.” J.A. 65. “Gary” responded that he “would like action tape with the youngest females on tape you have.” J.A. 69. “Paul” replied that he would send a sample tape of girls ages 10 and 13 engaging in sexual relations with their parents and requested that “Gary” indicate when he would be home to receive the sample tape. “Paul” also indicated that for full price, he would send a tape of a seven year old girl being sexually violated in a doctor’s office.

“Gary” subsequently replied:

I’ll make sure I’m home all day on the 24th and 25th. After I get paid at the end of next week I’ll send full price for a longer one the one about the doctors office, that sounded good. I know your [sic] not just giving them away I don’t blame you I wouldn’t either.

J.A. 75.

On June 1, 2000 a postal inspector acting as a mail carrier delivered a videotape containing child pornography entitled “All In The Family” to the Bartos residence. Defendant was not at home and his moth[960]*960er, with whom he was living at the time, accepted delivery of the package. When Bartos did not arrive home by 6 p.m., postal inspectors obtained consent to search the residence. The inspectors retrieved the child pornography tape, as well as a copy of Swinging Lifestyles of Michigan.

On February 15, 2001 a grand jury indicted Bartos on one count of attempted receipt of child pornography sent through the mail in violation of 18 U.S.C. § 2252(a)(2) and (b)(1).3 In a one day jury trial conducted on April 30, 2001, Bartos was tried and found guilty. The sole issue presented at trial was whether Bartos knew the videotape contained child pornography.

At the commencement of voir dire, the district court made preliminary comments to the venire, including a statement regarding the importance of jury service. The contested remarks include a comment that a function of jury service is to determine the level of justice in the local community. Bartos did not object to the statements at the time they were made.

During voir dire, and again at trial, the prosecution made allegedly prejudicial comments regarding the nature of certain exhibits and potential exhibits. Bartos attributes error to the government’s reference during voir dire to certain sexually explicit material as “pretty repulsive.” Bartos also contests the reference during trial to pictures in a “swinger’s” magazine as “fairly offensive.”

Pursuant to Federal Rule of Criminal Procedure 29, Bartos moved for acquittal at the close of the government’s case, and again at the close of all evidence. In support of his motions, Bartos argued that there was no direct evidence, and insufficient circumstantial evidence, to establish Bartos knew he was receiving child pornography. The district court denied both motions.

Defense counsel also requested a jury instruction that the court denied.4 The court’s stated reason was that such information was not part of the Sixth Circuit pattern jury instructions and the court was reluctant to “upset the symmetry of what the Sixth Circuit has.” J.A. 277.

[961]*961At the end of the one day trial, the jury deliberated for approximately one hour and returned a guilty verdict. Bartos was sentenced on August 10, 2001 to thirty-seven months imprisonment followed by a five year term of supervised release. Bar-tos timely filed a notice of appeal on August 16, 2001.

II. DISCUSSION

Bartos contends he was denied a fair trial when the district court judge commented during voir dire that the jury would determine the level of justice they wanted in their community. Bartos also attributes error to the government’s allegedly derogatory reference to certain sexually explicit materials during voir dire and again at trial. Bartos further asserts the court erred in refusing to instruct the jury that possession of nonobscene sexually explicit material involving persons over age seventeen is not illegal. Bartos also appeals the denial of his motions for acquittal.

A District Court’s Comments During Voir Dire

Bartos asserts the district court committed reversible error by commenting during voir dire that a function of jury service is to determine the level of justice in the local community. The contested statement reads as follows:

So I want you to know that we thoroughly understand, and some of you have written to me, your employers have written to me about how important your duties are, and I’m sure your family and those of you with children are making [obstructed text] sacrifice, all of you, to be here.

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51 F. App'x 957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bartos-ca6-2002.