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Conviction and Sentence Affirmed, Rejecting Sufficiency, Evidentiary Arguments

In United States v. Spoor, the Second Circuit (Cabranes, Carney, and District Judge Caproni) affirmed a conviction for production and possession of child pornography.  In a decision by Judge Caproni, the Court rejected a number of arguments made by the defense.

First, the Court rejected a sufficiency of the evidence argument presented by the defendant, holding that “[a]lthough the videos are not the most obvious examples of child pornography, given that we must view the evidence in the light most favorable to the Government, there was sufficient evidence from which a jury could conclude that each of the videos depicted a lascivious exhibition.”  Addressing an issue not raised by the defense, the Court also held that in future cases charging production of child pornography, the district court should take care to instruct the jury that it may not find a film to depict a “lascivious exhibition” based solely on the defendant’s intent in creating the video.  The defendant’s intent is relevant, but cannot be the sole evidence on this point.

The Court next rejected the argument that there was a prejudicial variance.  Contrary to the defense argument, the government produced sufficient evidence for the jury to conclude that the videos were produced at or about the times alleged in the indictment.

The district court did not err when it admitted evidence of the defendant’s prior New York State conviction for child molestation, pursuant to Federal Rule of Evidence 414.  This provision states that in a criminal case involving an accusation of child molestation, “the court may admit evidence that the defendant committed any other child molestation,” which evidence “may be considered on any matter to which it is relevant.”  While the rule does not make prior evidence relating to child molestation necessarily admissible (there still should be analysis under Rule 403 for prejudice), it does allow the jury to consider such prior acts for propensity purposes—a use that is otherwise prohibited under Rule 404(b).  Here, the district court was within its discretion in admitting the prior convictions as probative of the defendant’s intent and other disputed issues at trial. 

Finally, the Court held that the sentence of 360 months’ imprisonment was not substantively unreasonable.  The defendant was sentenced within the Guidelines range, and the charges here represented a “manifestation of continuing sexual exploitation,” including of his own child.  Given his long history of admitted child abuse, the need to prevent future exploitation justified the sentence.  While United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010) may counsel in favor of a variance in some cases, the risk of recidivism here and the abuse of his own family members rendered Dorvee distinguishable.

-By Michael Schwartz and Harry Sandick