United States v. Campbell

81 F. App'x 532
Court of Appeals for the Sixth Circuit·Decided November 13, 2003·No. No. 02-5450·Published·Cited by 12 cases

Opinion

OPINION

COOK, Circuit Judge.

Danny Campbell appeals his convictions for receipt and possession of child pornography in violation of 18 U.S.C. § 2252(a)(2)1 and (4)(B),2 arguing that the [534] district court (1) denied him his right to present a defense; (2) erred in denying his motion for acquittal; (3) erred in its instructions to the jury; and (4) erred in denying him a reduction in his offense level for acceptance of responsibility. Because we find Campbell’s arguments unavailing, we AFFIRM his conviction and sentence.

I. Factual and Procedural Background

Acting on a tip, police seized two three-ring binders containing 112 images of nude or partially nude children from Campbell’s place of employment in May of 2001. Campbell told police that he downloaded them from various websites. The police arrested Campbell and a grand jury indicted him for one count each of receiving and possessing child pornography shipped and transported in interstate commerce.

At trial, Campbell moved for judgment of acquittal at the close of the government’s case-in-chief, arguing that the government presented no evidence showing he intended to possess any illegal images. The district court granted the motion with respect to sixty-six of the images, concluding that as a matter of law, those images were not “lascivious” and could not support a conviction under § 2252. But the court ruled that the government presented sufficient evidence to allow the jury to consider the remaining images.

Campbell’s principal defense then, was that while those images contained nude or partially nude minors, he did not know they were engaged in sexually explicit conduct and therefore he did not violate § 2252. Essentially, Campbell wanted to show that he thought the pictures were artistic-the district court described it as a “kind of Michelangelo defense.” To support this defense, Campbell sought to present testimony from Lendon Noe, an art professor who would have testified about well-regarded artists who use nude or partially nude children as subjects in their work. The district court disallowed Noe’s testimony because Campbell failed to disclose her as an expert witness.

Later, Campbell sought to use in his closing argument those sixty-six images that the district court concluded were not lascivious as a matter of law. But the court refused his request, finding that the images would prejudice Campbell himself. The court also overruled Campbell’s objection to the jury instruction.

The jury found Campbell guilty of both receiving and possessing the sexually explicit images in violation of § 2252. At his sentencing, Campbell requested a three-point reduction in offense level under U.S.S.G. § 3E1.1 for acceptance of responsibility. The court denied that request and sentenced Campbell to forty months for each offense, to be served concurrently.

II. Discussion

A. Campbell’s Right to Present a Defense

Campbell argues that by excluding Professor Noe’s testimony and disallowing defense counsel’s use of the sixty-six nonlaseivious images for his closing argument, the district court denied him his right to present a defense. We review a district court’s evidentiary rulings for abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997).

The right of the accused to present a defense inheres in the Fifth Amendment’s guarantee of due process and the Sixth [535] Amendment’s Compulsory Process Clause. Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988); Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Presenting relevant evidence is part of that right. United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). But the right to present relevant evidence is not boundless. Id. It “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)). A defendant’s noncompliance with “established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt or innocence” may prompt a court to curtail the right to present relevant evidence. Chambers, 410 U.S. at 302. Excluding relevant evidence for failure to comply with such rules does not violate an accused’s right to present a defense so long as those rules are not “ ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ ” Scheffer, 523 U.S. at 308 (citation omitted).

Here, in excluding Noe’s testimony, the district court applied one of those rules: Fed.R.Crim.P. 16(b)(1)(C), concerning reciprocal discovery of expert witnesses.3 Campbell’s request for discovery from the government, and the government’s compliance, obligated him to disclose any expert witnesses he intended to present.4 Campbell does not claim that he properly disclosed this witness. Nor does he claim that enforcing Rule 16 here is “arbitrary” or “disproportionate” to its intended purpose. Instead, he argues that Professor Noe was a lay witness, not an expert and therefore not subject to the dictates of Rule 16(b)(1)(C).

The Federal Rules of Evidence allow a witness to be “qualified as an expert by knowledge, skill, experience, training, or education.” Fed.R.Evid. 702. As an art professor asked to testify about child nudity as art, Noe fit the bill. The defense sought to offer her insight about the professional art world, not her knowledge regarding Campbell’s case. Thus the district court acted within its discretion to remedy Campbell’s Rule 16(b)(1)(C) failure-to-diselose violation by excluding Noe’s testimony under Fed.R.Crim.P. 16(d)(2)(C).

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United States v. Campbell, 81 F. App'x 532 (6th Cir. 2003).

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