United States v. David Guy

708 F. App'x 249
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 13, 2017
Docket16-3788
StatusUnpublished
Cited by3 cases

This text of 708 F. App'x 249 (United States v. David Guy) 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. David Guy, 708 F. App'x 249 (6th Cir. 2017).

Opinion

ALICE M. BATCHELDER, Circuit Judge.

After David Guy’s niece accused him of sexually molesting her when she was between six and ten years old, law enforcement began an investigation. Police executed a search warrant at his home and discovered thousands of images of child pornography, as well as obscene images that he had created. A grand jury indicted him for attempted production of child pornography, possession and receipt of child pornography, and obscene visual representation of the sexual abuse of children. Guy went to trial, where a jury convicted him of the indicted offenses despite his defense that the images were art. The district court sentenced him to 1,020 months’ imprisonment. In this direct appeal, he raises issues concerning the sufficiency of the evidence against him, the fairness of his trial, the admission of certain evidence, the jury instructions, and juror bias. Finding no merit to any of his claims, we AFFIRM his conviction and sentence.

I

In September 2014, authorities in Cler-mont County, Ohio, began an investigation of David Guy based on information reported to them by his then-seventeen-year-old niece. The niece, known in this case as “Minor 1,” alleged that Guy had sexually molested her when she was between six and ten years old, and Guy was eventually convicted of gross sexual imposition by an Ohio jury. As part of the investigation, Investigator Lori Saylor initiated a controlled phone call between Guy and his sister, Minor l’s mother. During the call, Guy stated that he had taken nude photographs of Minor 1. Authorities executed a search warrant at his home and seized his computers and a detached hard drive. Police also seized CDs, DVDs, drawings, and sketch pads. The CDs contained over 25,-000 sexually explicit images of children, and the drawings included sexually explicit depictions of children. A forensic search of Guy’s computers indicated that they contained an enormous number of pornographic images of children. 1

Among the thousands of images of child pornography recovered from Guy’s computers, hard drive, and discs, some images warrant additional discussion in light of the issues raised in this appeal. First, the discs included images of a pedophile’s mascot known as “Pedo Bear.” These images bore captions that encouraged the viewer’s sexual interest in children. For example, one such caption stated, “Carpe Diem. You’re in her bedroom. Her mom is gone for the day. She won’t tell.”

Second, some of the images found on the discs depicted Guy’s minor female relatives. These images included innocuous family pictures that he took at family functions. But some of these innocuous images were used in more nefarious ways. He digitally manipulated various images by, for example, imposing a minor’s face onto another pornographic photograph. Some of these manipulated images included his face, and some also had sexually explicit captions, which he authored. These captions — which sometimes referred to either the child or Guy by name — encouraged sexual activity with and interest in children. Eleven different minor females appeared throughout this category of digitally manipulated images.

Third, investigators discovered an image of Minor 1 when she was approximately eight years old. The image showed her on Guy’s bed wearing a black and red lace nighty and striped socks but no underwear. She had been posed on her hands and knees and photographed from behind. Although the image did not display her genitals, the costume was hiked up to expose her bare buttocks. The image bore a caption written in the first person, as if Minor 1 were the speaker: “My well-f***ed cut**] ⅛ dripping with Uncle’s hot cum. He f***s me every day.” 2

The grand jury indicted Guy on eleven counts of the obscene visual representation of the sexual abuse of children, in violation of 18 U.S.C. § 1466A(a)(1), (d)(4) (Counts 1-11); one count of production and attempted production of child pornography, in violation of 18 U.S.C. § 2251(a), (e) (Count 12); three counts of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), (b)(1) (Counts 13-15); and one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4), (b)(2) (Count 16). The obscenity charges arose from the digitally manipulated photos. The attempted-production charge arose from the image of Minor 1. The receipt-and-possession charges arose from the other images of child pornography that Guy obtained from the internet.

A

The district court made several pre-trial evidentiary rulings that Guy challenges on appeal.

Guy’s defense to the obscenity and attempted-production-of-child-pornography charges included a First Amendment argument that the images were “subversive” art. To that end, he sought, to introduce evidence that would help define the “contemporary community standards,” which is an element of the legal test for whether material is obscene, as defined by Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The evidence — an exhibit at the Cincinnati Contemporary Arts Center — featured local artists’ responses to a Cincinnati curator’s past obscenity charge for displaying images created by the artist Robert Mapplethorpe. The exhibit contained images depicting nudity, including two images of nude children. Guy moved to allow a jury view of the exhibit, but the district court denied the motion. After the government rested its case, Guy sought to introduce two images from a book purchased at the gift shop of the Contemporary Arts Center. The district court did not admit this evidence, either.

Guy also filed a motion in limine to exclude various images that celebrated pedophilia, including the Pedo Bear memes, which were found on the discs in his home. He argued that he became aware of this evidence for the first time shortly before he filed the motion and that it was improper “other acts” evidence precluded under Federal Rule of Evidence 404(b), which prohibits the use of such evidence to prove a person’s character. The government had not filed a Rule 404(b) notice concerning this evidence. Nevertheless, it argued that there was no notice defect because it had told Guy which of Guy’s discs it might use at trial, and those discs contained the evidence he sought to exclude. The government also stated that it had “specifically pointed out these materials” to the defense more than two weeks before trial.

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Bluebook (online)
708 F. App'x 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-david-guy-ca6-2017.