2002 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s

for the Thir d C ir c uit

7-30-2002



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. e du/thir dc ir c uit_2002/473* The Honorable John R. Gibson, United States Court of Appeals for the Eighth

Circuit, sitting by designation. NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 00-3536

_____________

UNITED STATES OF AMERICA,

Appellee

v.

THOMAS B. DAVIS,

Appellant

_____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

D.C. Criminal No. 99-cr-00235

(Honorable Sylvia H. Rambo)

_____________

Submitted Under Third Circuit LAR 34.1(a)

April 6, 2001

Before: SCIRICA, AMBRO, and GIBSON, * Circuit Judges

.

(Filed: July 26, 2002)

_____________1 The Honorable Sylvia H. Rambo, United States District Judge for the Middle District

of Pennsylvania.

2 OPINION OF THE COURT

_____________

JOHN R. GIBSON, Circuit Judge :

Thomas Davis appeals his convictions for receiving, possessing, attemp ting to possess,

and possessing more than three items of, child pornography that has been shipped in in terstate

commerce under 18 U.S.C. §§ 2252(a)(4)(B), (b)(2), 2 252A(a)(2), (a)(5)(B), (b)(2) (1994 &

Sup p. II 1996). The district court 1 sentenced Davis to sixty-seven months in prison. We

affirm.

In June 1995, Special Ag ent Dennis Guzy, acting on a tip from local law enforcement,

began a mail correspondence with Davis as part of an undercover child pornography sting

operation. On July 1, 1995, Davis wrote that he " l ove[d] hand some, hairless or hairy, tall

teenage boys (ages 14-17) in every type of sexual photograph [or film]," and that he had "a film

of a showering boy who is completely naked, hairless, and I would estimate to be about 10 or

11. Though not legal in the U.S." Davis ultimately broke off the correspondence with Guzy.

In December 1996, Dav

is responded to an ad placed by United States Postal Inspector

David Dirmeyer in a homosexual video club t rading directory. The ad offered to trade

"Mykonas" videos--videos formerly produced under the nam e "Overseas Males," and known in

the porn ographic video community to often contain child pornography. Davis and Dirmeyer

proceeded to exchange a series of lett ers, in one of which Dirmeyer offered to send Davis2 At trial, Dirmeyer stated that he sought confirmation before resending the tape

because "a period of time had gone by [between Davis's o riginal order and his release from the

hospital]. We just wanted to make sure he knew exactly what was going on."

3 videos from his collec tion. Dirmeyer's offer contained a description of three videos: "Jim &

Tim," involving "[t]wo real life brothers, age around 20"; "Brother & Me," involving a "little

brother Tom [who] was 13"; and "Circle Jerk," involving "[a] group of 3 boys - allegedly cousins

aged 14-15."

Dirmeyer's letter expressly stated that "[a]ction and ages are as written." Davis

chose "Broth

er & Me," but was in the hospital when a controlled delivery was attempted by

Postal Inspector Thomas Kochman. Davis's attempted receipt of "Brother & Me" forms the

basis of Count III. S ee 18 U.S.C. § 2252A(a)(5)(B), (b)(2), (d) (Supp. II 1996) (prohibiting

attempts to knowingly possess any video tape containing three o r more images of child

pornography that has been shipped in interstate commerce).

After returning from the hospital, Davis asked Dirmeyer to resend the tape. Dirmeyer

responded with another letter, seeking to confirm that Davis was "still interested in the tape we

talked about," and ultimately resent the list of three videos for Davis to cho ose from. 2 Davis

then asked Dirmeyer to choose one for him, w riting that he'd " l

ove to see any of the three."

Dirmeyer, howeve r, insisted that Davis make his own selection, and Davis ultimately chose

"Jim & Tim" and "Circle Jerk." On July 8, 1997, Kochman executed a controlled delivery of

the videos. Davis's receipt and possession of "Circle Jerk" forms the basis of Counts I and II.

See 18 U.S.C. § 2252A(a)(2), (a)(5)(B) (Supp. II 1996) (prohibiti ng knowing receipt and

possession of child pornography that has been shipped in interstate commerce).4

Finally, in an unrelated October 1995 search of a Louisville, Kentucky, home pursuant

to another child pornography investigation, postal inspectors fo und a series of letters from

Davis to one Charles Smith. The letters focused on the two men's mutual fascination with

viewing and trading "younger male tapes," and mentioned multiple "Overseas Males" titles. In

separate letters, Davis thanked Smith for sending "OM 118" and "The Young, Wet and Thai."

As to "The Young, Wet and Thai," Davis wrote, on May 6, 1995 : "I absolutely loved their

youthful torsos

- - - so golden tan and smooth in splendid sexual actions!

. . . And that hot

shower scene

. . . was a sure turn-on." Copies of "OM 118" and "The Young, Wet and Thai"

were r ecovered from Smith's residence. Davis's possession of "OM 118," "The Young, Wet

and Thai,"

and "Circle Jerk," together with his attempted possession of "Brother & Me," forms

the basis of Count IV. S ee 18 U.S.C. § 2252 (a)(4)(B), (b)(2), (c) (1994 & Supp. II 1996)

(prohibiting knowing possession, or knowing attempted possession, of three or more video

tapes containing visual depict ions of a minor engaging in sexually explicit conduct, that have

been shipped in interstate commerce).

Davis requested a non-jury trial and the court found him guilty on all f our counts. He

n ow challenges the admissibility and sufficiency of certain evidence. "We recognize that a

trial court's determination of admissibility may be overturned only for cl ear abuse of

discretion." J oy Mfg. Co. v. Sol a Basic Indus., Inc. , 697 F.2d 104, 111 (3d Cir. 1982). Since

the judg e here returned a verdict of guilty, "the government is entitled to have us view the

evidence in the light most favorable to it. In evaluating the evidence, we give the prosecution

the benefit of all legitimate inferences which might reasonably be drawn from the proven3 In the first filed version of this opinion, which we have withdrawn, we cited the

definition of child pornography set forth at 18 U.S.C. § 2256(8)(B): "any visual depiction

. .

. [th at] is, or appears to be, of a minor engaging in sexually explicit conduct." Since then, the

Supreme Court has concluded that § 2256(8)(B) is overbroad and unconstitu tional because it

"abridges the freedom to engage in a substantial amount of lawful speech." A shcr oft v. Free

Speech Coalition

, 122 S. Ct. 1389, 1405 (2002). Davis has properly challenged our reliance

upon that definition in his motion for rehearing.

Davis was convicted of the first three counts under 18 U.S.C. § 2252A, which prohibits

various types of conduct involving child pornography but does not define child pornography.

The definitions of child pornography for this entire chapter, including §§ 2252 and 2252A, are

contained in 18 U .S.C. § 2256(8), which in four paragraphs enumerates "prohibited categories

of sp eech." Free Speech Coalition , 122 S. Ct. at 1397. The only citation of this definition of

child pornography in briefs to th is court was contained in Davis's reply brief, which set out §

2256(8)(A) and (B). While our first filed opinion quoted only paragraph (B), it is evident,

however, that in the case before us paragraph (A) applies.

The record demonstrates that the government, the judge, and D avis's counsel at trial all

relied upon the "involv[ing] the use of a minor engaging in sexually explicit conduct" prohibited

category of speech in determining whether Davis broke the law. Nowhere in the trial record

is there a statement of the court, of counsel, or of the witnesses suggesting that Davis could

be convicted on the basis of sexually explicit depictions of people 18 years old or older

who"appear to be" younger (the po s sibility which prompted the Court in Free Speech Coalition

to invalidate § 2256(8)(B)).

To begin with, the district court at one point stated: "There seems to be a lot of



### (continued...)

5 facts." United States v. Hamilton , 457 F.2d 95, 99 (3d Cir. 1972).

I.

Under Counts I and II, Davis was found guilty of receipt and possession of child

pornography in the form of the video "Circl e Jerk." In order to carry its burden of proof, the

gove rnment had to prove, among other things, that "Circle Jerk" contained child pornography

and that Davis knew "Circle Jerk" contained chil d pornography. S ee 18 U.S.C. § 2256(8)(A)

(Supp. I I 1996) (defining "child pornography" to include "any visual depiction . . . the

pro duction of [which] . . . involves the use of a minor engaging in sexually explicit conduct"); 33 

### (...continued)

contention here about boys and ages. Does not the statute call for a minor? A minor is anyone

unde r 18." Trial Transcript at 35. The United States Attorney replied in the affirmative. I d.

Furthermore, there was repeated testimony that all four tapes at issue c ontained "minors

engaged in sexually explic it conduct." I d. at 103, 105, 111, 116; see also id. at 62 ("[That tape]

has children under the age of 18, and they are engag ed in sexual acts."), 76 ("In my opinion, they

were clearly obviously under 18. It wasn't even close."). Specifically, Inspector Kochman, one

of the government's ma in witnesses testifying to that fact, stated on voir dire that if, after

viewing a tape, he determined that "the actors in those tapes were in the age range of 16 to 18,

or I could not speci

f ically say that that actor was not 18.

. . . I would not testify that that was

child pornography." I d. at 101. In addition, the parties used the constitutional definition in

stipulating that "'Brother and Me' contains visu al images of a minor engaging in sexually

explicit conduct and is child pornography as defined in 18 U.S.C. [§] 2256." I d. at 14 9. Finally,

Davis's counsel argued that, in effect, the tapes would not constitute child pornography if the

actors were 18 and merely appeared younger. Id. at 72-75.

Hence, the trial and the conviction of Davis were based sole ly upon§ 2256(8)'s

paragraph (A), which remains constitutional under N ew York v. Ferber

, 458 U.S. 747 (1982).

See Free Speech Coalition

, 122 S. Ct. at 13 96. Each of the tapes involved a minor engaged in

sexually explicit conduct. C f

. United States v. Hay , 231 F.3d 630, 639 (9th Cir. 2000)

( upholding conviction where defendant was not specifically charged under 18 U.S.C. § 2256(8)

and jury was specifically instructed using constitutional definition of child pornography).

4 Cf. United States v. Payne , No. MO-00-CR-107, 2000 WL 33348782 (W.D. Tex.

Nov. 8, 2000) (mem.) ("While the statute before the Court is 2252A, not 2252(a),

. . . the two

statutes are similar enough that the knowledge requirement . . . is equally applicable . . . .").

6 United States v. X-Citem ent Video, Inc. , 513 U.S. 64, 72 (1994) ("Age of minority in § 2252 4

indisputably possesses the same status as an elemental fact

. . . ."). Davis argues that the

district court erred when it allowed Inspectors Kochman and Dirmeyer to testify on the issue

of whether "Circle Jerk" contained child porno graphy. Davis goes on to argue that, even if it

was proper for the district court to admit this testimony, it constituted the on ly evidence that

"Circle Jerk" contained chil d pornography, and as such was insufficient. Finally, as to Counts

I and II, Davis argues the evidence presented at trial was insuf ficient to prove Davis knew that5 Davis does not argue that the testimony was not helpful.

7 "Circle Jerk" contained child pornography.

A.

Davis argued at trial that in order to prove that " Circle Jerk" contained child

pornography, the government had to have exp erts testify to that fact using scientific analysis.

The district court instead admitted the testimony of Inspectors Kochman and Dirmeyer as "lay

experts." Inspector Kochman testified that he had years of training and experience in

determining the ages of actors on video, that he had fil ed affidavits and testified in court as to

such matters, and that he was one of f o ur postal inspectors nationwide called in to render

assistance in this area during a particular child pornography investigation in Los Angeles

involving "Overseas Ma les" videos. He had viewed "Circle Jerk" and determined it contained

child pornography. Inspector Dirmeyer testified that he also had training and experience in the

area, that he had viewed "Circle Jerk," and that in his opinion the acto rs were so clearly under

eighteen that it "wasn't even close."

Under the version of Rule 701 in effect at the time of Davis's trial, opinion testimony

of lay witnesses is admi ssible where it is rationally based on personal knowledge and helpful

to the trier of fact. 5 Fed. R. Evid. 701 (1987) (amended 2000). Expert testimony may be

re quired to enable the fact finder to determine age in cases where the age of the actor in the

video is difficult to determine. S ee Unit ed States v. Katz , 178 F.3d 368, 373 (5th Cir. 1999)

("[I]n this case, in which t he government must prove that a model, who is post-puberty but6 Rule 701 was amended in 2000 to exclude testimony "based on scientific, technical,

or other specialized knowled ge within the scope of Rule 702." Fed. R. Evid. 701. (Rule 702

addresses the admissibility of expert testimony. See Fed. R. Evid. 702.) The amendment was

in part a response to o ur decision in A splundh

. S ee 57 F.3d at 1201 n.14 (refusing to hold "that

all lay witnesses offering opinions that require spe cial knowledge . . . must qualify under Rule

702," but commending the issue to the Judicial Conferenc e Advisory Committee on Rules of

Evidence); Fed. R. Evid. 701 advisory committee's notes to 2000 amendments (citing

Asplundh ). Davis's judgment, however, was imposed in October 2000, while the amendment

to Rule 701 became effective in December 2000. Therefore the 2000 amendments to Rule

701 are not applicable here, while Asplundh is.

8 appears quite young, is less than eighteen years old, expert testimony may well be necessary

. . . ."); cf. X-Citement Video

, 513 U.S. at 72 n.2 ("The opportunity for reasonable mistake as

to age increases significantly once the victim is reduced to a visual depiction, unavailable for

questioning by the distributor or receiver."). At the same time, "age is a matter on which

everyone has an opinion. Knowingly or unknowingly, we all form conclusions about people's

ages every day. It is therefore particularly appropriate for a lay witness to express an opinion

on the subject." U

nited States v. Yazzie

, 976 F.2d 1252, 1256 (9th Cir. 199 2). We have held

that "a lay witnes s with first-hand knowledge c an offer an opinion akin to expert testimony in

most cases, so long as the trial judge determines that the witness posses ses sufficient and

relevant specialized knowled ge or experience to offer the opinion." A splundh Mfg. Div. v.

Benton Harbor

Eng'g , 57 F.3d 1190, 1201-02 (3d Cir. 1995). 6 Since the district court

satisfied itself that the two witnesses possessed specialized knowledge, its decisio n to admit

the inspectors' opinion testimony as to the age of the actors was not clearly erroneous

regardless of whether we view that testimony as lay opinion tes timony akin to that of an expert

or merely lay opinion testimony based on ordinary human experience. S ee United States v.9

Stanley

, 896 F.2d 450, 4 52 (10th Cir. 1990) (admitting postal inspector's opinion under Rule

701 as proof that subjects in photographs were under eighteen).

B.

Davis argues that the evidence was not sufficient to prove that "Ci rcle Jerk" contained

child pornography. We are not persuaded.

Davis cites the Second Circuit case of United States v. Boissone ault , 926 F.2d 230 (2d

Cir. 1991), for the proposition that "at least in criminal cases, expert testimony on ultimate

issues should be given

little weight." I d. at 233. B oissoneault is much narrower than Davis

would have us believe, however, and the statement Davis quotes from that opinion is rooted in

the belief that "an expert's personal opinion that certain ambiguous conduct constitutes

criminal behavior should be given little, if any, weight in assessing the sufficiency of the

evidence." U

nited States v. Dua rte , 950 F.2d 1255, 1261 (7th Cir. 1991) (distinguishing

Boissoneault in part because that decision is applicable to "experts who testif y that a

defendant's ambiguous physical conduct constituted criminal behavior"). Without expressing

any opinion as to whether B oissoneault reflects the law of this circuit, we conclude it is not

applicable here. There is nothing in the record before us to suggest that there was anything

ambiguous about the contents of the tape--as opposed to the description of the tape (see

below).

In addition to the testimony of the in spectors, the judge had before her the tape itself,

which had been admitted into evidence. Davis seems to assume, in making his argument as to

this issue, that the judge never viewed the tape. We will not entertain this assumption. In a7 Davis does not argue that he did not know the materials were sexually explicit.

10 criminal t rial to a judge, either party may request a statement of factual findings. Fed. R. Crim.

P. 23(c). Davis did not do so, and we will not assume the trier of fact ignored admitted

evidence when Davis failed to exercise his right to test that assumption.

We conclude the evidence was sufficient for the trier of fact to find that "Circle Jerk"

contained ch

ild pornography. S ee United States v. Brown

, 862 F.2d 1033, 1039-40 (3d Cir.

1988) ("[T]he testimony of the postal inspec tor provided sufficient evidence from which the

jury could, if it desired, find that the tapes which Brown r equested did in fact constitute child

pornography.").

C.

Davis argues that even if "Circle Jerk" did in fact contain child pornography, the

government did not produce sufficient evidence to prove that he knew the a c tors portrayed

were minors. S ee X-Citement Video

, 513 U.S. at 78 (" [T]he term 'knowingly' in § 2252

ex tends both to the sexually explicit nature of the material and to the age of the performers."). 7

Specific ally, he argues that the description of "Circle Jerk" provided by Dirmeyer was too

ambiguous to confer knowledge of the age of the actors on him.

Davis ordered a tape describing the actors as "allegedly cous ins aged 14 - 15." He

a rgues "allegedly" modifies "aged 14

- 15" and thus he could not have known for certain that the

tape contained child pornography. Regardless of the grammatical soundness of that argument,

Davis knew the "action and ages [were] as written." He also had previously ordered, and later8 The parties stipulated to the fact that "Brother & Me" contained child pornography.

11 expressed a willingness to rec eive, another tape ("Brother & Me") unambiguously described

as involving a thirteen year-old. We conclude this evidence is sufficient to satisfy the scienter

requirement of § 2252A. S ee U nited States v. Knox , 32 F.3d 733, 753-54 (3d Cir. 1994)

(concluding scienter requirement under § 2252 was satisfied where the ad responded to

described the film in question as containing "girls between the ages of 11 and 17") ; Brown , 862

F.2d at 1038 (concluding evidence was suffic ient to prove that defendant knowingly received

child pornography in light of "his solicitation of child pornography as expressed in his letter

and other correspondence").

II.

Davis argues that he abandoned his attempt to receive the tape "Brother & Me." 8 We

have recognized, in U

nited States v. Kikumura

, 918 F.2d 1084, 1108 (3d Cir. 1990), tha t

Model Penal Code § 5.01 is representati ve of the "well-settled principles of the law of

attempts." Assuming for the purposes of this opinion that the defense of abandonment is

available to Davis, that defense is only available if the asserted abandonmen t was voluntary.

See United States v. Shelton

, 30 F.3d 702, 706 ( 6th Cir. 1994) ("[W]ithdrawal, abandonment

and renunciation, however characterized, do not provide a defense to an attempt crime. As

noted, the attempt crime is c omplete with proof of intent together with acts constituting a

substantial step toward commission of the substantive offens e."); Model Penal Code § 5.01(4)

("[I]t is an affirmative defense that he abandoned his effort to commit the crime . . . under9 Davis argued in his reply brief that there was insufficient evid ence that he knew

"Brother & Me" contained t hree or more images of child pornography. The government filed

a motion to strike many of the arguments in the reply brief, arguing that they were raised for

the first time in the reply brief. W e grant the governm ent's motion as to this particular

argument and deny it as to the rest. S ee Kost v. Kozakiewicz

, 1 F .3d 176, 182 n.3 (3d Cir.

1993) ("[W]here an issue i s raised for the first time in a reply brief, we deem it insufficiently

preserved for review before this court.").

12 circumstances manifesting a complete and voluntary renunciation of his criminal purpose.").

Here, the only reason Davis did not receive "Brother & Me" was tha t he was in the hospital.

Fol lowing his return from the hospital he asked that it be re-sent. He eventually selected and

received a different child pornography video. The district court properly found Davis guilty

of attempting to possess child pornography. 9

III.

As to Count IV, Davis a rgues first that there was insufficient evidence to prove that

either "OM 118" or "The Young, Wet and Thai" contained images of a m inor engaging in

s exually explicit conduct. He argues that the testimony of Inspector Kochman should never

have been admitted because the tape he was testifying about was not found in Davis's apartment

and thus his perception wa s not rationally based. S ee Fed. R. Evid. 701. Davis also argues that

even if Kochman's testimony was properly admitted, the evidence was not sufficient to convict

him of possessing the tapes because neither "OM 118" nor "The Young, Wet and Th ai" were

ever found in his possession. Since only one of the two tapes is necessary to sustain this

count, and since we find sufficient evidence to maintain Davis's conviction on the basis of "The

Young, Wet and Thai," we do not address "OM 118."13

Davis argues that Kochman's testimony should not have been admitted because the tape

Kochman viewed was Smith's, not Davis's. However, Kochman was testifying to whether the

video productio n entitled "The Young, Wet and Thai" contained images of a minor engaging in

sexually explicit conduct, not whether the partic ular copy of "The Young, Wet and Thai" Davis

possesse d contained such images. As such, his testimony was based on his personal viewing

of "The Young, Wet and T hai," helpful to the trier of fact, and properly admitted. C f. Stanley

,

896 F.2d at 452 ("Inspector Carr's testimony [as to the age of the subjects depicted in the

photographs] was helpful as an explanation of why he ordered a supervised delivery, obtained

a search warrant, and seized the defendant's package.").

Davis next argues that even if Kochman's testimony was properly admitted, it was not

sufficient to prove "The Young, Wet and Thai" contained images of a minor engaging in

sexually explicit conduct. In testifying that "The Young, Wet and Thai" did indeed contain such

images, Inspector Kochman test ified that he had used stop action and applied the Tanner scale.

See United States v. Long , 108 F.3d 1377 (6th Cir. 1997) (unpublished decision) (describing

Tanner s cale as "a methodology used to help doctors measure the stages of puberty in a child").

On cross, Davis's counsel attempted to impeach Kochman's testimony that there we re multiple

scenes of m

i nors by referring to the report of a Dr. Charles F. Johnson indicating that there

was only one scene in "The Young, Wet and Thai" involving a minor. However, only one scene

of a minor engaging in sexually explicit conduct is required. See 18 U.S.C. § 2252(a)(4)(B)(i),

(c) (prohib iting knowing possession of three or more video tapes containing "any visual

depiction

. . . of a minor engaging in sexually explicit conduct"). In addition, the tape was14

admitted into evidence . Based on our discussion above as to Counts I and II, we conclude the

evidence here was sufficient to find that "The Young, Wet and Thai" contained images of a

minor engaging in sexually explicit conduct.

Finally, Davis argues that the evidence was insufficient to prove he possessed "The

Young, Wet and Thai." In a May 6, 1995, letter to Smith, Davis thanked Smith for sending him

"The Young, Wet and Thai." In that same letter, Davis referred to the use of copies: "You

mentioned you have 'Boys in The River Kwai' and 'Thai Treasures'. Of course I'd love to see

copies of these . . . . . or should it be somehow easier to copy . . . . anything German . . . ." He

also described a particularly "hot shower scene" in "The Young, Wet and Thai." Less than two

months later he sent a lette r to Guzy describing a film he had that included a scene "of a

showering boy

. . . not legal in the U.S." A rational trier of fact could find this evidence

sufficient to conclude Davis had a copy of Smith's version of "The Young, Wet and Th ai.". S ee

Jackson v. Virginia

, 443 U.S. 307, 319 (1979) ("[T]he relevant qu estion is whether, after

viewing the evidence in the light most favorable to the prosecu tion, any rational trier of fact

could have found the essential e lements of the crime beyond a reasonable doubt."), q uoted in

Government of the Virgin Islands v. Edwards

, 903 F.2d 267, 270 (3d Cir. 1990) ("The evidence

against Edwards

. . . was circumstantial. However, that does not mean that it does not provide

an adequate basis for the jury verdict.").

IV.

We affirm the judgment of the district court.15

_______________________

TO THE CLERK:

Please file the foregoing opinion.

/s/ John R. Gibson

Circuit Judge