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February 4, 2003


The opinion of the court was delivered by: Gerard E. Lynch, District Judge.


On October 16, 2002, a jury returned a guilty verdict on both counts of an Indictment charging Jorge L. Pabon Cruz ("Pabon") with advertising to receive, exchange, or distribute child pornography in violation of 18 U.S.C. § 2251(c)(1)(A) ("Count One") and receiving or distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B) ("Count Two"). The defense now moves for a judgment of acquittal on both counts pursuant to Rule 29 of the Federal Rules of Criminal Procedure, or alternatively for a new trial pursuant to Rule 33. The defense claims that (1) the evidence was insufficient to prove that Pabon knew that the images depicted actual children; and (2) a new trial is required because (a) the admission of the pornographic photographs was unfairly prejudicial; and (b) the Court's supplemental instruction was so confusing as to result in an improper verdict. (Defendant's Memorandum of Law ("Def.'s Mem.") at 1.) The motion will be denied.


I. Sufficiency of the Evidence

Pursuant to Rule 29 of the Federal Rules of Criminal Procedure, the Court may set aside a jury's verdict and enter a judgment of acquittal if the evidence is insufficient to sustain a conviction. A defendant claiming that the evidence against him was insufficient bears a very heavy burden. United States v. Desena, 287 F.3d 170, 177 (2d Cir. 2002). Not only must the Court "view the evidence presented in the light most favorable to the government . . . draw[ing] all reasonable inferences in [the government's] favor," but the Court also "must uphold the jury's verdict if [it] find[s] that `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).) These standards are designed to prevent the Court from "usurping the role of the jury" by "substitut[ing][its] own determinations of credibility or relative weight of the evidence for that of the jury." Id. (internal quotation omitted).

Pabon argues that the evidence was insufficient to prove that he knew that the photographs contained images of actual children and that such knowledge was a required element of Counts One and Two. Since the evidence, construed in the light most favorable to the government, was sufficient to support a reasonable inference that Pabon had the requisite knowledge to violate each statute, the motion for acquittal will be denied.

A. Count Two: Knowingly Receiving or Distributing Child Pornography

Count Two of the indictment charges Pabon with violating 18 U.S.C. § 2252A(a)(2)(B), which provides for criminal punishment of any person who "knowingly receives or distributes . . . any material that contains child pornography that has been . . . transported in interstate or foreign commerce by any means, including by computer." As relevant to this case "child pornography" is defined as a "visual depiction" whose production "involve[d] the use of a minor engaging in sexually explicit conduct." 18 U.S.C. § 2256(8)(A).*fn1 A defendant may only be convicted of violating this statute, then, if he "knowingly" receives or distributes visual images that were produced using actual minors.

Neither the Supreme Court nor the Second Circuit has addressed whether, in this particular version of the various confusing and overlapping federal statutes dealing with child pornography, the term "knowingly" modifies only the verbs "receives or distributes" or extends to the entire phrase "knowingly receives or distributes . . . child pornography," such that the government must prove that the defendant was aware that the material he was receiving or distributing was child pornography as defined by the statute, that is, that it had been produced using real children rather than virtual images. However, in United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994), the Supreme Court addressed essentially the same question in connection with 18 U.S.C. § 2252(a)(1)(A), which punishes anyone who "knowingly transports or ships in interstate or foreign commerce . . . any visual depiction, if the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct." The Court concluded that the term "knowingly" extended to the "use of a minor" element. 513 U.S. at 78. The Supreme Court's interpretation makes excellent sense, since it is rarely reasonable to impose criminal punishment on people who are unaware of the critical facts that make their conduct blameworthy. What makes the conduct punished by § 2252(a)(1)(A) blameworthy is that it involves trafficking in depictions of the sexual abuse of children; the "interstate commerce" element is merely what brings the blameworthy conduct under federal jurisdiction. To hold that "knowingly" applied only to the act of "transporting in interstate commerce" would irrationally deny a defense to someone who knowingly mailed a package without knowing that it contained child pornography, while providing a defense to someone who intended to distribute materials that he knew constituted child pornography, but inadvertently put it on the outgoing mail pile rather than on the one for hand delivery.*fn2

Section 2252A(a)(2)(B), the statute at issue in this case, simply extends the jurisdictional reach of the criminal penalties provided in § 2252(a)(1) for those who actually transport child pornography in interstate commerce to those who receive or distribute child pornography that has previously been so transported. There is no persuasive reason to interpret it differently than the virtually identical provision interpreted in X-Citement Video. As this Court held in United States v. Reilly, No. 01 Cr. 1114(RPP), 2002 WL 31307170, at *5 (S.D.N.Y. Oct. 15, 2002):

[§ 2252A] is of the same grammatical structuring, carries the same harsh penalties, and uses the same definitional section as 18 U.S.C. § 2252. As such, the same penalties and anomalies which concerned the X-Citement Court would result if this Court were to construe `knowingly' in § 2252A as modifying only the surrounding verbs and not the minority of the performers and the sexually explicit nature of the material which the X-Citement Court held applicable to § 2252.
For these reasons, the Court instructed the jury, without objection from either the government or the defendant, that to convict Pabon of Count Two, the Government must prove that he "knew that the child pornography depicted at least one minor, that is, an actual person under the age of eighteen, and knew the general nature, character, and content of the child pornography." (Trial Transcript ("Tr.") 444.) The jury, which is presumed to have followed this instruction, found the defendant guilty beyond a reasonable doubt.

The evidence was sufficient to permit the jury to make this finding. First, it is undisputed that the material at issue in this case was in fact created using actual minors, and was not virtual, artificial, simulated or falsified child pornography masquerading as the real thing. The defense stipulated that various photographs in evidence recovered from Pabon's file server "depict actual children. In other words, [the photographs] are not digital or virtual creations and are not computer generated images." (Gov't Exhibit ("GX") 5.) This stipulation was read to the jury near the end of the prosecution's case. (Tr. 241-42.)

Pabon correctly points out that (1) the stipulation does not address his knowledge of whether the images depict actual children; and (2) the government did not present direct evidence that Pabon knew that the material was not simulated or virtual child pornography. (Def.'s Mem. at 2.) But direct proof of knowledge is not required for conviction. Proof beyond a reasonable doubt may be made out by circumstantial evidence. Indeed, as courts routinely instruct juries, since direct access to the contents of a person's mind is rarely available, knowledge is usually proved in criminal cases in precisely that way. To set aside the jury's verdict, the Court must conclude that no rational factfinder could have inferred from the evidence, considered in the light most favorable to the government, that Pabon knew that the images depicted actual children.

In addition to the stipulation, the record includes testimony and documentation concerning the quantity, nature, and organization of the child pornography in Pabon's possession. The defendant's computer contained over 500 photographic files and over 200 video files of child pornography. (Tr. 182-83.) A jury exercising common sense could easily infer that no rational person could believe that all of these images were simulated or virtual. The material was neatly organized into categories, thus indicating that the proprietor of the site was familiar with the files it contained. We will not recite a long list of the titles of the files; the name of one file downloaded by an undercover officer, which is not atypical of the names of files in the computer, will suffice to give the flavors "5YROLD-LINDA_FUCKSDICKDEEP-IN-PUSS.jpg." (Tr. 154; GX 3G.)*fn3 The exhibit showed that the title was a fair description of the contents of the file. From this evidence, "any rational trier of fact" could easily have concluded that Pabon had personally examined and indexed a great deal of the material on his computer, and thus was aware of the images it contained.

The jury also viewed what it was entitled to conclude was a representative sample of that material. Certainly nothing about these shocking images would suggest in any way to the reasonable observer that the images did not depict actual children. To the contrary, the images appear sickeningly real. The children shown in many of the photographs in evidence are so young that no reasonable person could entertain the possibility that they were actually youthful-looking adults. While advances in digital imaging technology have arguably made it possible to "fake" human images by creating convincing digital simulations, jurors could draw on their own common sense and experience to recall that the most expensive digital special effects Hollywood can command only rarely generate images that can be confused with live human actors. No reasonable person could have believed that more than a handful of the thousands of photographs and videos that the evidence shows Pabon had collected and distributed could possibly have been produced using such techniques.

Moreover, internal evidence in many of the photographs suggests that they depict actual incidents of abuse. Some of them mask identifying features of the children or adults depicted, permitting the inference that the events depicted were actual abusers concerned lest they be identified and prosecuted for their criminal acts. Others can be inferred from objects depicted in them to have been created some time ago, before the development of digital technology. The same internal evidence from which the jury could conclude beyond a reasonable doubt, even absent stipulation, that actual children were depicted in the images at issue was unquestionably available to Pabon, and the jury thus could easily have concluded that what they knew beyond a reasonable doubt, he knew to the same degree of certainty.

Nothing more is required by the statutory element of knowledge. Pabon could have argued to the jury (although, in fact, he did not) that the evidence left open the possibility that he believed all the apparent child pornography in his possession had been produced in a virtual reality workshop.*fn4 But the jury would have been fully entitled to reject any such argument. The argument that it is theoretically possible that every image Pabon received and distributed had been simulated, and that unless he had been present for their production (and there is no evidence he ever was involved in producing any pornography of any kind) Pabon could not have actually "known" that they were real, demands an epistemological certainty that the law has never required. Drug couriers are convicted every day of "knowingly" distributing illegal drugs that they had never fieldtested or personally sampled, and which theoretically could have been counterfeit. In ...

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