United States v. Carroll

• Court: Court of Appeals for the First Circuit
• Decided: February 4, 1997
• Docket: 96-1709
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT



                              _________________________


No. 96-1709


UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                               CHRISTOPHER B. CARROLL,



                                Defendant, Appellant.



                              _________________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
                                                 ___________________



                              _________________________



                                        Before



                                Selya, Circuit Judge,
                                       _____________



                            Aldrich, Senior Circuit Judge,
                                     ____________________



                              and Boudin, Circuit Judge.
                                          _____________



                              _________________________



               M.   Kristin  Spath,  Assistant  Federal  Defender,  Federal
               ___________________

          Defender Office, on brief for appellant.

               Paul  M. Gagnon, United  States Attorney, and  Jean B. Weld,
               _______________                                ____________

          Assistant United States Attorney, on brief for appellee.



                              _________________________



                                   February 3, 1997



                              _________________________



SELYA, Circuit Judge.   In this  case a jury  convicted
                    SELYA, Circuit Judge.
                           _____________



          defendant-appellant Christopher B. Carroll of violating a federal



          child pornography statute.  Following the imposition of sentence,



          Carroll appeals.   The  key question  involves an elusive  comma.



          Having found the comma, we affirm.



                                          I.
                                          I.
                                          __



                                      Background
                                      Background
                                      __________



                    In the summer of 1995, the appellant separated from his



          wife, Tammy.   While sorting out her  husband's personal effects,



          Tammy  discovered  two  rolls  of  undeveloped  film.    The film



          contained 46  photographs  of the  appellant's adolescent  niece,



          Brittany.1    Many  of  these photographs  depicted  Brittany  in



          various states of undress, wearing her mother's lingerie, holding



          sex  toys  and  inserting  them  in  body  cavities,  and  posing



          suggestively.  After an  investigation spearheaded by the Federal



          Bureau of Investigation (FBI),  the government concluded that the



          appellant  took  these  photographs  on  January  8,  1995  (when



          Brittany  was 13  years of  age).   Carroll's indictment,  trial,



          conviction, and sentencing followed.



                                         II.
                                         II.
                                         ___



                                       Analysis
                                       Analysis
                                       ________



                    In this  venue, the appellant advances  two assignments



          of error.  We discuss them in sequence.


____________________



               1Brittany is a pseudonym which we employ in  compliance with

          the  confidentiality  requirements  of  18  U.S.C.     3509(d)(1)

          (1994).



                                          2



A.
                                          A.
                                          __



                             Sufficiency of the Evidence
                             Sufficiency of the Evidence
                             ___________________________



                    The statute of conviction provides in relevant part:



                         Any  person  who   [1]  employs,   uses,

                    persuades, induces, entices,  or coerces  any

                    minor  to engage in,  or [2] who  has a minor

                    assist any other person  to engage in, or [3]

                    who  transports any  minor  in interstate  or

                    foreign  commerce,  or  in  any  Territory or

                    Possession  of  the United  States,  with the

                    intent  that  such  minor  engage  in[,]  any

                    sexually explicit conduct for the  purpose of

                    producing  any  visual   depiction  of   such

                    conduct  shall be  punished  as provided  [by

                    law] if  such person  knows or has  reason to

                    know  that  such  visual  depiction  will  be

                    transported in interstate or foreign commerce

                    or  mailed, or if  such visual  depiction has

                    actually  been  transported in  interstate or

                    foreign commerce or mailed.



          18 U.S.C.   2251(a)(1994) (arabic numerals supplied; propriety of



          including  bracketed  comma  to  be discussed  infra).    In this
                                                         _____



          instance  the   government  accused  Carroll,  under   the  first



          statutory   category,  of   using  or   persuading  Brittany   to



          participate in  making sexually  explicit depictions.   The judge



          instructed the jurors that,  in order to convict, they  must find



          that  the government  proved three  elements beyond  a reasonable



          doubt:   (1) that the defendant "knowingly used or persuaded [the



          minor]  to engage in sexually explicit conduct for the purpose of



          producing a visual depiction  of that conduct"; (2) that  "at the



          time  such conduct was engaged  in, the defendant  knew that [the



          minor] was under  the age  of eighteen years";  and (3) that  the



          defendant  "knew or had reason to know that such visual depiction



          would  be transported  in  interstate commerce."   The  appellant


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claims  that the  government  did not  prove  the last  of  these



          elements and that the court therefore erred in denying his motion



          for judgment of acquittal.



                    A trial court must  enter a judgment of acquittal  in a



          criminal case  if  "the evidence  is  insufficient to  sustain  a



          conviction."  Fed.  R. Crim. P. 29(a).  We  afford de novo review



          to Rule 29 determinations,  see United States v. Olbres,  61 F.3d
                                      ___ _____________    ______



          967,  970  (1st  Cir.), cert.  denied,  116  S.  Ct. 522  (1995),
                                  _____  ______



          employing a familiar  mantra:  "If the  evidence presented, taken



          in the light  most flattering to  the prosecution, together  with



          all  reasonable inferences  favorable to  it, permits  a rational



          jury to find each essential element of the crime charged beyond a



          reasonable doubt, then  the evidence is legally sufficient."  Id.
                                                                        ___



          In conducting this tamisage, we consider all the evidence, direct



          and  circumstantial, and  resolve  all  evidentiary conflicts  in



          favor of the verdict.  See United States v. Amparo, 961 F.2d 288,
                                 ___ _____________    ______



          290 (1st  Cir.), cert. denied,  506 U.S. 878 (1992).   Under this
                           _____ ______



          formula, the  evidence before  us suffices  to sustain  a finding



          that  the  appellant  intended  to  transport  the   pornographic



          depictions in  interstate commerce (and therefore  knew that they



          would be so transported).



                    The  government  sought   to  satisfy  the   interstate



          commerce  element here  in  two ways,  both featuring  Brittany's



          testimony.   One  approach  involved  the  intended  use  of  the



          sexually  explicit  photographs.    According  to  Brittany,  the



          appellant discussed with her  his plan to scan the  images into a


4



friend's computer  and distribute  them  on the  Internet.   This



          testimony,   if   believed,   proved   the   government's  point.



          Transmission  of   photographs  by  means  of   the  Internet  is



          tantamount  to moving  photographs  across state  lines and  thus



          constitutes transportation  in interstate commerce.   See  United
                                                                ___  ______



          States v. Thomas, 74  F.3d 701, 706-07 (6th Cir.),  cert. denied,
          ______    ______                                    _____ ______



          117 S. Ct. 74 (1996); United States v. Maxwell, 42  M.J. 568, 580
                                _____________    _______



          (U.S.A.F.C.A.  1995).  And here, since the photographs were taken



          in New Hampshire but the  computer that Carroll allegedly planned



          to use was  located in  Massachusetts, interstate  transportation



          perforce  would  have occurred  when  the  appellant carried  the



          fruits  of  his  labor  across  the  New  Hampshire  border  into



          Massachusetts.



                    The   government's   second   approach   involved   the



          anticipated processing  of the  photographs.   Brittany testified



          without  contradiction that Carroll told her he was going to take



          the film to  Massachusetts to  be developed.   If believed,  this



          testimony, in and of itself, would forge the requisite interstate



          link.   See 18 U.S.C.   10 (1994) (defining "interstate commerce"
                  ___



          for  purposes of Title 18);  cf. Rodriguez v.  Clark Color Labs.,
                                       ___ _________     _________________



          921  F.2d 347,  349 (1st  Cir. 1990)  (indicating in  dictum that



          knowing  mailing  of  undeveloped negatives  across  state  lines



          satisfies interstate  commerce  element under  child  pornography



          statutes).



                    The   appellant  mounts  a   ferocious  attack  on  the



          credibility  of  Brittany's testimony.    He  notes, among  other


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things, that she did not mention the Internet connection when she



          first testified; that, on  cross-examination, she originally said



          that  her grandmother had told  her that Carroll  wanted to place



          her pictures on the  Internet; and that she changed  her story on



          redirect  examination,  asserting for  the  first  time that  the



          appellant had mentioned  the Internet  to her.   He also  assails



          Brittany's  account  of  his  supposed plan  for  developing  the



          prints, stressing  that she  did not make  this revelation  until



          shortly before the trial.



                    For purposes of Rule  29, the government's proof passes



          muster.  The appellant's criticisms of Brittany's testimony go to



          the weight of the evidence, not to its sufficiency, and therefore



          were properly left to  the jury.  Some degree of inconsistency is



          not  surprising when  a  minor testifies  about traumatic  events



          instigated   by  a   close   relative.     Here,  moreover,   the



          inconsistencies came in response to a series of leading questions



          by   defense   counsel;  on   redirect,   after   refreshing  her



          recollection by perusing  reports of interviews she  had given to



          an FBI agent, Brittany's memory cleared.  In these circumstances,



          a  fair-minded  jury  could  easily believe  that  her  refreshed



          recollection  represented  an  accurate account  of  the relevant



          events  and that Carroll took  the photographs with the intention



          either to have them developed out of state, or to put them on the



          Internet, or both.



                    This  conclusion is reinforced  by other  evidence that



          supports  Brittany's  testimony  on  redirect  examination.   The


6



record suggests,  for example, that the appellant  and his friend



          (Doug  Allen) had  in  the past  attempted  to scan  pornographic



          images  into Allen's computer, thus permitting  the jury to infer



          that  the  two  men knew  how  to  circulate  photographs on  the



          Internet and might want to  put Brittany's likenesses to  similar



          use.   Allen also testified that  he and Carroll intended to form



          an on-line  dating service  utilizing both pictures  and personal



          messages.   Carroll apparently knew about a similar service being



          offered  in New  Hampshire  which depicted  topless females  with



          black bars across their faces to conceal their identities.  Given



          this background, Brittany's testimony  that Carroll told her that



          he would  put her  picture on the  Internet with  a little  black



          strip across her eyes  could have suggested to a  thoughtful jury



          that he  intended  to use  the sexually  explicit photographs  to



          promote his embryonic dating service.



                    We  have said  enough  on this  score.   In  the  final



          analysis,  the appellant's argument  boils down to  a plaint that



          the   jury   misjudged    Brittany's   veracity.      Credibility



          determinations are, of course, squarely within the jury's domain.



          See United States  v. Romero, 32  F.3d 641, 646 (1st  Cir. 1994);
          ___ _____________     ______



          United  States v. O'Brien, 14  F.3d 703, 706-07  (1st Cir. 1994).
          ______________    _______



          Eyewitness  testimony is  rarely seamless,  and appellate  courts



          ordinarily should  decline invitations  to second-guess  a jury's



          considered decision about whether to  credit particular testimony



          despite the fact  that it  contains inconsistencies.   This  case



          falls comfortably within the sweep of that generality.  Resolving


7



evidentiary conflicts  and drawing  reasonable inferences  in the



          government's favor, as the Rule 29 standard requires, see Olbres,
                                                                ___ ______



          61  F.3d at 970,  the evidence is  adequate to  support a finding



          that the  appellant intended  to transport the  sexually explicit



          photographs in interstate commerce.  No more is exigible.


B.
                                          B.
                                          __



                                  The Judge's Charge
                                  The Judge's Charge
                                  __________________



                    The appellant's next  point is grammatically intriguing



          but  legally impuissant.   He  posits that  a trial judge  has an



          obligation to instruct the  jury on every element of  the offense



          of   conviction,  that   flouting  this   obligation  constitutes



          reversible error, and that  such a lapse occurred  here.  In  the



          circumstances of this case, we agree with the first two-thirds of



          the appellant's  triangular hypothesis, see, e.g.,  United States
                                                  ___  ____   _____________



          v. DiRico,  78 F.3d 732, 735  (1st Cir. 1996), but  we take issue
             ______



          with   his   conclusion  that   the   charge   omitted  necessary



          information.



                    In enumerating  the elements of the  offense, the judge



          refused to  include a requirement  that the government  prove the



          defendant  knowingly persuaded  the minor  to engage  in sexually



          explicit conduct "with the intent that such minor engage in" such



          conduct for the purpose of producing a  visual depiction thereof.



          It  is  to  this  omission  that  the  appellant  assigns  error,



          asserting  that section 2251(a) must  be read so  that the phrase



          quoted  above modifies  all three  types of  actions criminalized


8



under  the statute,  namely,  (1)  employing, using,  persuading,



          inducing, enticing,  or coercing  a minor  to engage  in sexually



          explicit  conduct (the  "use" category,  under which  Carroll was



          charged); (2) having a  minor assist another person to  engage in



          such conduct (the "assistance"  category); and (3) transporting a



          minor in  interstate or  foreign  commerce (the  "transportation"



          category).  This assertion depends almost entirely on the absence



          of  punctuation immediately  following the  quoted phrase;  it is



          only the putative lack of a comma that makes arguable  the theory



          that  the  phrase  modifies  the trailing  phrase  "any  sexually



          explicit conduct" and,  thus, applies to all  three categories of



          proscribed behavior.2



                    For reasons that will appear, the district court bought



          into the proposition that  no comma lurked in the  critical place



                              
          ____________________



               2A graphic iteration of a portion of the statute may help to

          illustrate the point:



                         Any  person  [1]   who  employs,   uses,

                    persuades, induces, entices,  or coerces  any

                    minor  to engage in,  or [2] who  has a minor

                    assist any other person  to engage in, or [3]

                    who  transports any  minor  in interstate  or

                    foreign  commerce,  or  in  any  Territory or

                    Possession  of  the United  States,  with the
                                                         ________

                    intent  that  such  minor  engage  in[,]  any
                                                              any
                    _____________________________________

                    sexually explicit conduct for the  purpose of
                    sexually explicit conduct for the  purpose of

                    producing  any  visual   depiction  of   such
                    producing  any  visual   depiction  of   such

                    conduct. . . .
                    conduct. . . .



          18  U.S.C.    2251(a)  (arabic numerals,  underscoring, and  bold

          facing supplied).   The issue  is whether the  underscored phrase

          should  be  read as  accompanying the  passage  in bold  face, or

          whether it should be considered a part of what we have termed the

          third category of proscribed conduct (and, thus, does  not modify

          the passage in bold face).  This depends, in part, on whether the

          text contains the bracketed comma.



                                          9



and  acted  upon  this   perception;  it  assumed  that  Congress



          inadvertently omitted the comma,  read the statute as if  it were



          there,  and confined the quoted  phrase to the  third category of



          proscribed conduct  (transportation).3   We  review the  district



          court's  solution  to this  enigma de  novo.   See  Strickland v.
                                                         ___  __________



          Commissioner,  Me. Dep't of Human  Servs., 96 F.3d  542, 545 (1st
          _________________________________________



          Cir.  1996)  (holding  that questions  of  statutory construction



          receive nondeferential review).



                    Insofar as we can  tell, the judge's underlying premise



            that the statute did not contain a comma in  the critical place



            arose because both  parties conceded as much below (as  they do



          on  appeal); other  federal  courts had  accepted the  premise as



          true, see, e.g.,  United States  v. Thomas, 893  F.2d 1066,  1068
                ___  ____   _____________     ______



          (9th Cir.), cert. denied, 498 U.S. 826 (1990); and the statute as
                      _____ ______



          printed  in updates  of the  United States Code  Annotated, e.g.,
                                                                      ____



          West Supp. 1996,  and as  rendered in at  least one  computerized



          legal research  data base,  omitted the comma.   But  appearances



          often are deceiving.   See  Aesop, The Wolf  in Sheep's  Clothing
                                 ___         ______________________________



          (circa 550 B.C.).  In point of fact, the authoritative version of



          the statute does contain  the elusive comma.  Congress  added the



          language in question by enacting Pub.  L. 99-628,   3, 100  Stat.



          3510 (1986).   The text  of the  amendment, as  disclosed in  the



                              
          ____________________



               3The court impliedly premised this interpretive rationale on

          its power to "disregard the punctuation [contained in a statute],

          or repunctuate, if need be, [in order] to render the true meaning

          of  the statute."  United  States Nat'l Bank  v. Independent Ins.
                             _________________________     ________________

          Agents  of  Am.,  Inc.,  508  U.S.  439,  462  (1993)  (citations
          ______________________

          omitted).



                                          10



Statutes  at Large, shows a  comma after "engage  in."  Conflicts



          between the  text of a statute  as it appears in  the Statutes at



          Large, on  one  hand,  and  in usually  reliable  but  unofficial



          sources  such as the United  States Code Annotated,  on the other



          hand, are  rare, but, when they  occur, the rendition of  the law



          contained  in the Statutes at Large controls.4  See United States
                                                          ___ _____________



          Nat'l Bank v. Independent Ins. Agents of Am., Inc., 508 U.S. 439,
          __________    ____________________________________



          448 (1993).



                    Having  made  the  determination that  section  2251(a)



          actually contains (and thus is to be read with) a comma after the



          phrase  "with the intent that  such minor engage  in," we readily



          conclude that the district judge described the essential elements



          of  the offense  correctly in  his jury  instructions.   With the



          comma  in  place,  we  regard the  proper  interpretation  of the



          statute as  self-evident.  Wherever possible,  statutes should be



          construed in a commonsense manner, O'Connell  v. Shalala, 79 F.3d
                                             _________     _______



          170,  176 (1st Cir. 1996), honoring plain meaning, In re Thinking
                                                             ______________



          Machines  Corp.,  67 F.3d  1021,  1024-25  (1st Cir.  1995),  and
          _______________



          avoiding absurd or counterintuitive results, Sullivan v. CIA, 992
                                                       ________    ___



          F.2d 1249, 1252 (1st Cir. 1993).



                    In  this   instance  the   phrase  in  question,   read



          naturally, modifies only the  transportation category.  Any other



          reading  would  defeat  the linguistic  parallelism  which  marks



          section 2251(a) and would result in a curiously lopsided piece of

                              
          ____________________



               4In all  events, recent versions  of the United  States Code

          (as  opposed to the United States Code Annotated) include a comma

          at the critical place.



                                          11



legislation.5   Here, too,  a construction consistent  with plain



          meaning  comports with  the  logic  of  the  statute.    One  who



          persuades  a minor to engage in sexually explicit conduct, or who



          has a minor assist another person in such conduct, commits an act



          which  in and  of  itself is  worthy of  criminal  sanction.   By



          contrast, one who transports a minor across state lines (no more,



          no less) has done  nothing inherently wrong unless his  intent at



          the time  is blameworthy.  On  that basis, the idea  that section



          2251(a) embodies  an additional  scienter requirement  (having an



          intent that  the minor  thereafter engage in  proscribed conduct)



          solely  with reference  to  the transportation  category is  both



          easily explicable and eminently sensible.  Cf. O'Connell, 79 F.3d
                                                     ___ _________



          at  176 (counselling courts to  examine "the statute  as a whole,



          giving due weight to design, structure, and purpose as well as to



          aggregate language").



                    The   history  of   section   2251(a)   supports   this



          interpretation.   Congress amended the law in 1986 to engraft the



          transportation  category  (including  the disputed  phrase)  onto



          section 2251(a).  Prior to this amendment, the use category, like



          the  assistance  category,  required  proof  only  of  the  three



          elements that the judge included in  his charge.  See Pub. L. 95-
                                                            ___



          225,   2(a),  92 Stat. 7 (1978).   To suggest, in  the absence of



          any  confirmatory legislative  history, that  the 1986  amendment



          added  a  new  intent element  to  both  the  use and  assistance

                              
          ____________________



               5As  mentioned  earlier,   the  statute  criminalizes  three

          separate  types of conduct, and  each category is  described in a

          clause ending with the words "engage in."



                                          12



categories,  instead of  merely  supplying  an additional,  self-



          contained   category,   strains   credulity.      See   generally
                                                            ___   _________



          Passamaquoddy Tribe v.  State of  Me., 75 F.3d  784, 788-89  (1st
          ___________________     _____________



          Cir.  1996) (in  interpreting statutes,  courts should  take into



          account preexisting statutory provisions).



                    To  recapitulate, we  hold  that the  phrase "with  the



          intent that such minor engage in"  sexually explicit conduct does



          not apply  to the use  category of  section 2251(a).   It follows



          that  the  trial  court's   instructions  accurately  limned  the



          essential elements of the offense.



                                         III.
                                         III.
                                         ____



                                      Conclusion
                                      Conclusion
                                      __________



                    We  need go no further.   Having dispatched the seeming



          grammatical  anomaly, no  serious question  remains.   It clearly



          appears  that  the  appellant   was  fairly  tried  and  lawfully



          convicted.  Accordingly, the judgment below must be


Affirmed.
          Affirmed.
          ________


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