United States v. Finley, 2013 WL 4046390 (C.A.3 (Pa.)) August 2013

Appellant was convicted in District Court for the Western District of Pennsylvania of production, receipt, distribution, and possession of material depicting the sexual exploitation of a minor. He was sentenced to 50 years and life term of supervised release.

The investigation was a routine P2P investigation using GigaTribe.  FBI Agents found username Boys4me2010 to be sharing images of child sexual exploitation.  The agents accessed via the P2P program, videos and images.  Boys4Me2010 indicated he was personally sexually involved with a child, and revealed the child’s name.  One of the agents then discovered a folder with that child’s name, and images of that child being sexually exploited. After capturing the IP Address and tracing it to the ISP, the ISP via subpoena, provided Appellant’s name and address.  An executed search warrant yielded two computers.  There were images of a child being sexually abused on a green couch which was matched to Appellant’s green couch.  A search of the computer revealed appellant’s resume, a GigaTribe account, Facebook page, and over 30,000 videos and images of child sexual exploitation.

Appellant was charged on a four-count superseding indictment: Count One, production; Count Two, receipt; Count Three, distribution; and Count Four, possession, all in violation of 18 U.S.C. 2252.  Appellant plead not guilty and went to a jury trial.

Defense Counsel offered to stipulate that the videos and images were child pornography, on the condition that the Government would not show the videos and images to the jury.  The Government declined.  In voir dire, the Government asked proper questions related to the viewing of the sexually graphic evidence.

Defense Counsel, in his opening, torpedoed the prosecution by telling the jury that the defense does not object to the fact that the evidence is child pornography. “So if the prosecutor chooses to still show them to you, even though we are not disputing that fact, he has the right to show them if he chooses, but I am telling you we’re not disputing it.”

Attack on Displaying the Evidence on 403 Grounds: Before one of the FBI Agents testified, Defense argued that the four videos the Government wanted to show the jury were unfairly prejudicial under F.R.E. 403.  The Judge viewed the images and ruled against the Defense stating that the videos are part of the prosecution’s case.  After Defense came back with an argument that the prejudicial effect must still be balanced, the Judge said “I think the probative value outweighs the possible prejudice.”

Before the other FBI Agent testified, the Defense made the same objection regarding nine videos and two images.  The Judge reviewed the evidence and made a similar ruling.

Before the Computer Forensic Expert testified, the Defense renewed their objection, and the Judge made the same ruling.

“A district court is generally afforded broad discretion on evidentiary rulings due to its familiarity with the details of the case and its greater experience in evidentiary matters.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379 (2008).  “This is particularly true with respect to Rule 403 since it requires an on-the-spot balancing of probative value and prejudice…” Id. “When a court engaged in a Rule 403 balancing and articulates on the record a rational explanation, we will rarely disturb its ruling.  Where, however, the court fail[s] to perform this analysis, or where its rationale is not apparent from the record, there is no way to review its discretion.” United States v. Sampson, 980 F.2d 883, 889 (3d Cir. 1992).

Practitioner Note: If your Judge does not sua sponte articulate his 403 rationale, it’s our job to remind him to do so, if he wants any deference on appeal.

With respect to Defendant’s other argument regarding 403, in that they stipulated, and therefore the Gov’t should have been stuck with the stipulation. “With respect to the offered stipulation, the government is entitled to prove its case free from a defendant’s preference to stipulate the evidence away.” Old Chief v. United States, 519 U.S. 172, 189, 117 (1997). Also, the court noted that knowledge is an element of the crime, and the Government bears the burden of proof.  Lastly, the Government only showed thirteen videos and two images out of the more than 30,000 collected.

Attack on Count One and its Jury Instruction:  After a failed objection to the Government’s proposed jury instruction; the defense made a motion for Judgment of Acquittal arguing that as a matter of law, a sleeping child “engage in sexually explicit conduct” (the child at issue was asleep).  The judge denied the motion stating that under the legal definition he did engage in sexual activity.

“The plain meaning of legislation should be conclusive, except in rare cases in which the literal application of a statute will produce a result demonstrably at odds with the intention of its drafters.  In such cases, the intention of the drafters, rather than the strict language, controls.” United States v. Ron Pair Enters., Inc. 489 U.S. 235, 232, 242 (1989).  The court here held that the trial judge did not err in giving the instruction and that as a matter of law a sleeping child can “engage in” sexually explicit conduct.

Attack on Sentencing Matters: The statutory maximums were 30 year, 20 years, 20 years, and 10 years, respectively.  Defense objected to the Pre-Sentencing Report by arguing that Counts Two and Three (receipt and distribution) were violations of the same provision, and constituted alternate ways of proving the same offense.

Here, the Government was smart in using different evidence for the receiving and distribution offenses, thereby avoiding what would probably have been a reversal on those grounds.  “The evidence established that [Finley] at a minimum distributed the images he produced in Count One separate and apart from the images he received in Count Two.  The evidence at trial also established that [Finley] received images that he did not possess and distributed different images that he already possessed.”

Practitioner Note: When you charge both possession and receipt, compare the images/videos and use different evidence for each offense.


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