Appeal from the August 18, 2009, judgment of conviction of the United States District Court for the Southern District of New York (Richard J. Sullivan, District Judge), sentencing the Defendant to imprisonment for 120 years primarily for sexual exploitation of a minor.
The opinion of the court was delivered by: Jon O. Newman, Circuit Judge.
Before: NEWMAN and RAGGI, Circuit Judges, and RAKOFF,*fn1 District Judge.
The Defendant contends that the knowledge of interstate transmission of a visual depiction of a minor, induced to engage in explicit sexual conduct, see 18 U.S.C. § 2251(a), must be contemporaneous with the production of the visual depiction. Affirmed.
The principal issue on this criminal appeal is a narrow but unsettled issue concerning the temporal aspect of the knowledge requirement of 18 U.S.C. § 2251(a), which punishes inducing a minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct. The precise issue is whether the required knowledge (or reason to have such knowledge) that the visual depiction will be transmitted in interstate commerce or mailed must exist at the time that the visual depiction is produced or may be acquired thereafter. This issue arises on an appeal by William Davis from the August 18, 2009, judgment of the District Court for the
Southern District of New York (Richard J. Sullivan, District Judge) convicting him, upon a jury's verdict, of one count of sexual exploitation of a minor, two counts relating to child pornography, and one count of being a felon in possession of ammunition. Other issues concern the lawfulness of a search of a safe in the home of Davis's estranged wife and the admission of Davis's prior conviction for sodomy.
We conclude that the knowledge required by section 2251(a) need not be contemporaneous with the production of the proscribed visual depiction and that Davis's other claims lack merit. We therefore affirm.
Indictment, conviction, and sentence. In a superseding indictment, Count One charged Davis with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), Count Two charged him with being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1), Count Three charged him with sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a), and Count Four charged him with attempted distribution of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(1), 2252A(b)(1). The evidence supporting Count Three established that the minor was Davis's four-year-old stepdaughter. After a jury convicted Davis on all counts, the District Court sentenced him primarily to consecutive terms of 20 years on Count One, 10 years on Count Two, 50 years on Count Three, and 40 years on Count Four, for an aggregate sentence of 120 years. The federal sentence was to run consecutively to the unexpired portion of a state sentence that Davis was then serving.
The relevant facts will be set forth in connection with the discussion of each issue.