United States v. Broxmeyer

616 F.3d 120, 2010 U.S. App. LEXIS 16032, 2010 WL 3001351
CourtCourt of Appeals for the Second Circuit
DecidedAugust 3, 2010
DocketDocket 09-1457-cr
StatusPublished
Cited by44 cases

This text of 616 F.3d 120 (United States v. Broxmeyer) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second 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. Broxmeyer, 616 F.3d 120, 2010 U.S. App. LEXIS 16032, 2010 WL 3001351 (2d Cir. 2010).

Opinions

DENNIS JACOBS, Chief Judge:

Todd Broxmeyer, convicted in the United States District Court for the Northern District of New York (McAvoy, /.), challenges the sufficiency of the evidence to support his convictions for [i] production of child pornography and [ii] transportation of a minor across state lines with the intent to engage in criminal sexual activity. He also raises an as-applied challenge to the statute criminalizing the production of child pornography.

Broxmeyer, a 37-year-old field hockey coach, entered into a sexual relationship (legal under state law) with a 17-year-old player. The two counts alleging production of child pornography are premised on two photos (one per count) that the girl took of herself. He was found to have induced her to produce them; but while there is evidence that he encouraged her to take photographs of that kind, and that she took several with his encouragement, there is no evidence that he encouraged her to take the two photos specified in the two counts of conviction.

The transportation count is premised on the round-trip travel of a 15-year-old field hockey player from her home in Pennsylvania to a field hockey practice in New York where Broxmeyer was coach. He drove her back home, stopping en route for a sexual encounter with her before crossing the state line.

We agree with Broxmeyer on the sufficiency challenges; reverse the convictions on Counts One, Two, and Four; and re[123]*123mand for re-sentencing on the counts of conviction as to which no appeal was taken (attempted production of child pornography and possession of child pornography).

I

Broxmeyer was for some years a field hockey coach to girls 14-to-18 years old. During this career, Broxmeyer engaged in sexual relationships with several of his players, some of whom were younger than 18. These relationships involved both physical acts and “sexting” (defined here to mean the exchange of sexually explicit text messages, including photographs, via cell phone).

In September 2008, Broxmeyer was convicted by a jury on all counts of a five-count indictment, of which Counts One, Two, and Four are at issue on this appeal:

• Counts One and Two: Production of child pornography, in violation of 18 U.S.C. § 2251(a);
• Count Three: Attempted production of child pornography, in violation of 18 U.S.C. § 2251(a), (e);
• Count Four: Transportation of a minor across state lines with the intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a); and
• Count Five: Possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).1

At the close of the government’s case-inehief, Broxmeyer moved pursuant to Federal Rule of Criminal Procedure 29(a) for a judgment of acquittal on Counts One, Two, and Four. The district court denied the motion as to Count Four and reserved judgment as to Counts One and Two. A week after his conviction, Broxmeyer moved pursuant to Federal Rule of Criminal Procedure 29(c) for a judgment of acquittal on all five Counts or, in the alternative, for a new trial pursuant to Federal Rule of Criminal Procedure 33(a). By written order dated November 4, 2008, the district court denied the motion in full.

On April 2, 2009, the district court sentenced Broxmeyer to concurrent terms of 360 months’ imprisonment on each of Counts One, Two, and Three; 480 months on Count Four; and 120 months on Count Five. (The advisory Guidelines sentence was life imprisonment.)

In Point II, we review the sufficiency of the evidence to support the convictions for production of child pornography. In Point III, we review sufficiency as to the transportation Count.

II

Counts One and Two allege that Broxmeyer produced two sexually explicit pictures (one per Count) that a 17-year-old field hockey player took of herself.

A

Broxmeyer met A.W. in 2005, while he was coaching at a field hockey camp in New England.2 Over the next few years, and through her senior year in high school, A.W. attended Broxmeyer’s practices at field hockey camps across Pennsylvania, New Jersey, and New York.

Beginning in the spring of 2007 (and continuing until his arrest in December 2007), Broxmeyer and A.W. — who was then 17 — began a consensual sexual rela[124]*124tionship, legal under New York’s statutory rape law.3 The two engaged in sexting as well as physical sex.

They exchanged images as follows. They used their cell phones to take pictures of themselves engaged in sexual acts with each other. Broxmeyer texted A.W. a picture of his arousal. Broxmeyer text-ed A.W. sexually explicit pictures of other field hockey players, including one of several girls in their underwear, who were arranged in a pyramid. Broxmeyer showed A.W. several sexually explicit pictures of field hockey players that he had saved to an internet photo album. He challenged A.W. to acquire naked pictures of other field hockey players, and A.W. obliged. A.W. also texted Broxmeyer explicit photos of herself. Broxmeyer never expressly asked A.W. to send him pictures of herself, but he did tell her that he liked them and that she was doing something nice by sending them to him.

Counts One and Two relate to two photos- — one per Count — that A.W. took of herself and texted to Broxmeyer. The first (“Photo 1”) shows A.W. from the neck down, naked, touching her private parts. The second (“Photo 2”) shows A.W. using a handheld showerhead to spray water between her legs. But there is no evidence as to when the two photos at issue were taken — i.e., produced — or how or whether their production fits into the series of other communications and exchanges.

B

The federal statute criminalizing the production of child pornography, 18 U.S.C. § 2251(a), provides:

Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct ... shall be punished ... if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce ... if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means....—

Section 2251(a) applies only to the actual production

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Cite This Page — Counsel Stack

Bluebook (online)
616 F.3d 120, 2010 U.S. App. LEXIS 16032, 2010 WL 3001351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-broxmeyer-ca2-2010.