United States v. Fuller

77 F. App'x 371
Court of Appeals for the Sixth Circuit·Decided October 9, 2003·No. No. 02-3303·Published·Cited by 38 cases

Opinion

GUY, Circuit Judge.

Defendant, James Stanley Fuller, appeals following his conviction by a jury on four counts: (1) attempting to entice a minor by computer or telephone to engage in criminal sexual activity (18 U.S.C. § 2422(b)); (2) interstate transportation of photographic computer files from Georgia to Ohio depicting minors engaged in sexually explicit conduct (18 U.S.C. § 2252(a)(1)); (3) interstate transmission of photographic computer files by computer depicting minors engaged in sexually explicit conduct (18 U.S.C. § 2252(a)(1)); and (4) possession of photographic computer files that had been transported in interstate commerce depicting minors engaged in sexually explicit conduct (18 U.S.C. § 2252(a)(4)(B)). Defendant, who chose to represent himself, was sentenced to a term of imprisonment of 135 months to be followed by a two-year term of supervised release.

Through appointed counsel, defendant challenges his sentence on the grounds that the district court failed to make adequate factual findings and erred in its application of the guidelines. In addition, counsel contends (in an argument also made in defendant’s pro se filings), that defendant’s convictions on counts 2, 3, and 4 must be vacated under Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), because the government failed to prove that the depictions in the computer files were of actu[374] al human beings. Although sometimes repetitive and undeveloped, defendant’s pro se filings include arguments against the admission of evidence obtained illegally from America On Line (AOL) or as a result of an illegal search of the apartment where he had been staying, and several challenges to his convictions on what appear to be sufficiency of the evidence grounds. For the reasons discussed below, we affirm defendant’s convictions and sentence.

I.

Defendant came to the attention of the FBI after two adult females, Margaret Dudas and Marjorie Vizurraga, reported his preoccupation with having sex with minors. Both women made contact with defendant over the Internet through the instant messaging (IM) service offered by AOL and communicated with him by email and telephone before meeting him in person.

Fuller used the screen name “Blueey0123” to communicate with Dudas through AOL. During one telephone conversation with Fuller, Dudas received an IM from someone using the screen name “K9Teacher” that forwarded a picture of a dog in a sexual position with a woman. Dudas later realized that she heard the AOL chimes on Fuller’s end of the line each time “K9Teacher” communicated with her, but when she blocked messages from “K9Teacher” the chiming stopped. Fuller met Dudas at her home and, after consensual sex, commented on a photograph of Dudas’s 14-year-old daughter. When Fuller asked about sex between Dudas and her daughter and expressed interest in having sex with them both, Dudas threw him out.

Fuller communicated with Vizurraga through AOL using the screen names “Stan046” and “Blueey0123.” Fuller, who said he trained major league baseball players around the country, stayed with Vizurraga in Cleveland during their brief relationship. She testified that she ended their relationship after about a month because of his preoccupation with sex and his desire to have her participate in sexual acts with multiple partners, including a 15 year-old female babysitter.1

FBI Special Agent Brian Vigneaux began investigating Fuller. Vigneaux learned from another FBI office that an earlier AOL account in Fuller’s name had been terminated for having transferred child pornography. In answer to an administrative subpoena, AOL advised that Fuller had been a member of AOL since February 27, 2000, and used screen names including “Blueey0123,” “April0435,” and “K9Teacher01.”

With this information, Vigneaux connected to the Internet via AOL and, using the undercover screen name “Peachesl4kwl,” added “Blueey0123” to the account’s IM “buddy list.” On July 12, 2000, Vigneaux made contact with defendant and relayed that “Peaches” was almost 14 years old and lived with her mother. Fuller said he was 48 years old, and they exchanged photographs. Vigneaux sent Fuller a photograph of Special Agent Kelly Liberti, which had been taken when she was 14 years old and in which she was dressed as a cheerleader. As the session continued, Fuller asked “Peaches” to call him on the telephone and discussed, in sexually explicit terms, her body, mother/daughter sex, masturbation, and other [375] sexual acts they could do together.2 After this contact, Fuller traveled from Georgia to Cleveland, Ohio, taking his laptop computer with him.

During their next IM session on July 17, 2000, Fuller told “Peaches” that he was in Cleveland and was staying with a major league baseball player. He asked about meeting with her, offered to take digital pictures of her, and questioned her in explicit terms about her sexual activity and asked if she had sex with a 13-year-old girlfriend. Fuller again asked that she call him on his cellular telephone. Vigneaux arranged to have Agent Liberti call a few hours later, posing as “Peaches” and identifying herself as “Brianna.” Fuller asked her age again and was told she was “almost 14.” Fuller tried to arrange for them to meet that night, told her they could have privacy, promised that they would go slowly, and talked explicitly about sex.

Fuller contacted “Peaches” by instant messaging on July 19, 2000, and suggested that they could meet while her mother was at work. He accused her of being a “talker and not a doer.” At the end of the session, she agreed to call him 30 minutes later. Liberti called Fuller as agreed, telling him she could ride her bicycle to meet him the following afternoon after her mom left for work. Fuller asked about her mom’s age, looks, and if she was dating anyone. He also asked in explicit terms about specific sex acts; including multiple partners, domination, sex with dogs, sex with other girls, and mother/daughter sex. When Liberti expressed interest, Fuller agreed to e-mail her some pictures of things they were talking about. They discussed arrangements for their meeting the next day, and Liberti agreed to call him as soon as her mother left for work. Fuller later sent ‘Teaches” an e-mail with two pictures of women having sex with dogs.

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United States v. Fuller, 77 F. App'x 371 (6th Cir. 2003).

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