United States v. Anthony Fletcher

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3195

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

A NTHONY L. F LETCHER,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 07-CR-10043—Michael M. Mihm, Judge.

A RGUED M AY 29, 2009—D ECIDED F EBRUARY 10, 2011

Before R IPPLE, R OVNER, and S YKES, Circuit Judges.

R OVNER, Circuit Judge. Anthony L. Fletcher was con-

victed following a jury trial of production of child pornog-

raphy, see 18 U.S.C. § 2251(a), attempted production of

child pornography, see 18 U.S.C. § 2251(a),(e), and posses-

sion of child pornography, see 18 U.S.C. § 2252A(a)(5)(B),

(b)(2). On the three counts of conviction the district court

sentenced Fletcher to a total of 480 months’ imprison-

ment to be followed by concurrent life terms of supervised

2 No. 08-3195

release. One hundred and twenty months of Fletcher’s

prison term are to run concurrently with state convic-

tions in McClean County, Illinois for related crimes.

Fletcher appeals, primarily challenging his conviction

for production of child pornography under § 2251

(Count I). Fletcher also objects to the government’s

alleged “piggy-backing” of his prosecution on the

McClean County prosecution for similar conduct and

challenges the government’s handling of certain evi-

dence before trial as well as the district court’s refusal

to dismiss a particular juror for cause. We affirm.

I.

Fletcher’s conviction for attempted production of

child pornography (Count II) stemmed from separate

incidents in Decatur and Bloomington, Illinois. In 2005,

Fletcher was living in Decatur. In June of that year he

offered a 14-year-old named Mary Beth a ride to her

boyfriend’s house. Instead, he took Mary Beth to his

own home, where he invited her inside and offered her

a job airbrushing and ironing designs on t-shirts. She

accepted the job and returned the following day with

her friend, Amanda, who also said she would work

for Fletcher. Amanda was 16 or 17 years old. Fletcher

told both girls that he needed to videotape an inter-

view with them; he told Mary Beth to lie on the tape

and state her age as 17 so that he could not be accused

of employing someone underage. She complied.

The girls worked for Fletcher for between one and two

months that summer. Fletcher showed them pictures of

No. 08-3195 3

women engaged in sexually explicit conduct every day

they were at his home. He also repeatedly asked them

to have sex with each other and to allow him to take

nude photos of them, but they both refused. After ap-

proximately six weeks, he offered them alcohol and

gave them money to buy marijuana. They smoked the

marijuana and drank while they were “working.” In

August 2005, Fletcher gave Mary Beth a shirt and skirt

and took photos of her wearing them while he in-

structed her to pose and lower the skirt provocatively.

By 2006, Fletcher had moved to Bloomington, where

he lived across the street from a girl named Alyssa. He

talked to Alyssa and her 14-year-old friend, Britney, and

invited them to his house to have some clothing air-

brushed. Once there, Fletcher showed them photos of

naked girls and asked them if he could videotape

them having sex or take nude photos of them. When

they returned another day to pick up the airbrushed

clothing he had promised them, Britney stayed alone

with Fletcher and accompanied him to his room to use

his computer. Once there Fletcher put Britney on his lap

and asked her repeatedly to have sex with him. She

refused and eventually left.

The production and possession of child pornography

charges (Counts I and III) were based on conduct in

Bloomington later that same year. In April, Fletcher

approached Britney’s sister Heather and her friend

Alena and extended his now-familiar invitation for the

girls to come inside his home and see some airbrushed

clothing. He showed them some clothing and Heather

4 No. 08-3195

told him she was 16. Alena, who was 14, told Fletcher

that she was 15 and also gave him her phone number.

Fletcher offered to give them airbrushed clothing in

exchange for housecleaning.

The girls returned the following day and he offered

them alcohol and marijuana. Heather accepted and was

soon intoxicated. They both spent the night at Fletcher’s

house and slept in his bed with him, where he had sex

with Alena and fondled Heather. They returned two

days later on a Sunday afternoon in April 2006. That day

Fletcher again gave the girls alcohol and marijuana. He

began taking pictures of them and offered them clothes

to try on for photos. He gave Alena something see-through

to wear and gave Heather shorts that were too small to

be buttoned. They posed in the clothes in his bedroom,

where he photographed them in sexually suggestive

poses and took photos focusing on their genitals and

pubic areas. He then videotaped himself having sex with

Alena. Although Fletcher cannot be identified from the

tape, Heather testified that she walked into the room

and saw the two of them.

Five other men were present at Fletcher’s home at

different times throughout the day. One of them, Lavell

Harris, Jr., was in the bedroom while Fletcher photo-

graphed Heather and Alena, and he appears in several

of the photos. He asked Heather and Alena at some

point how old they were, and when they responded

that they were 16 and 15, respectively, he said to Fletcher

and another man standing in the doorway (Tyrone Foy),

“You all going to jail.” Heather and Alena finally left

No. 08-3195 5

around 10 p.m. that night. Around midnight that same

night, someone connected the camera to a computer at

Fletcher’s home and viewed the photos of Heather

and Alena.

The following day Heather told her probation officer

what had happened at Fletcher’s home. When the proba-

tion officer told Heather that it was necessary for him

to call the police, Heather called Alena and told her

as much. Alena, in turn, called Fletcher to let him know

the police would be coming. When she was interviewed

by police later that day, Alena said that Fletcher had

not taken pictures of her.

That afternoon, officers executed a search warrant at

Fletcher’s home. They seized a Fuji camera and three

digital memory cards (one in Fletcher’s pocket and one

in a seized computer). They also took a computer and a

number of compact discs, which were later found to

contain child pornography. Although the images of

Heather and Alena had been deleted from the camera

memory card before the police arrived, a computer

expert was able to retrieve the data and reproduce the

deleted images.

In July 2007, Fletcher was charged in a superseding

indictment with attempted production of child pornogra-

phy (Britney, Alyssa, and other minors in 2005 and

2006), production of child pornography (Heather and

Alena in 2006), and possession of child pornography. At

trial, Fletcher represented himself with the assistance

of standby counsel. The government presented testimony

from Britney, Heather, Alena, and several other girls

6 No. 08-3195

Fletcher had importuned for nude photos or sex. Three

of the men present at Fletcher’s home while Heather

and Alena were there in April 2006 also testified. The

jury also heard from officers who executed the search

warrant, digital media experts, and a pediatrician who

opined as to the ages of the girls in certain photo-

graphs. Fletcher did not testify. His theory of defense

was that someone else with access to his camera and

computer created the child pornography. He called a

former police officer as an expert, who testified that

investigators should have preserved potential trace

evidence such as fingerprints that may have supported

Fletcher’s theory of defense. At the close of the govern-

ment’s case-in-chief, Fletcher moved for a judgment of

acquittal based on the officers’ alleged mishandling of

the evidence, but the district court denied his motion.

On the production of child pornography charge

(Count I), 18 U.S.C. § 2251, the district court concluded

over Fletcher’s objection that the government need not

prove as an element of the offense that Fletcher knew

that the victims were minors. The court also ruled that

Fletcher could not rely on the affirmative defense that

he did not know Heather and Alena were minors—

a defense Fletcher alluded to when he cross-examined

the girls and accused them of telling him that they were

18. On the remaining counts (attempted production and

possession of child pornography), the court instructed

the jury that it must find beyond a reasonable doubt

that Fletcher knew the girls were minors. Fletcher was

convicted on all counts. Fletcher filed a number of post-

trial motions. As relevant here, he moved for a judgment

No. 08-3195 7

of acquittal based on the government’s alleged failure

to follow its own policy against successive state and

federal prosecutions for similar crimes. His motion

relied on his convictions for related crimes in McLean

County, which preceded the grand jury’s return of the

federal superseding indictment by just two months. The

district court denied all of Fletcher’s post-trial motions.

Fletcher appeals.

II.

We begin with Fletcher’s arguments regarding the

construction and validity of § 2251. First, he maintains

that Congress intended the statute to contain a scienter

element such that the district court should have in-

structed the jury that the government bore the burden

of proving beyond a reasonable doubt that Fletcher

knew that Alena and Heather were minors. If we

conclude that there is no such requirement in the

statute, Fletcher maintains that it is unconstitutional on

its face and as applied unless it is read to allow a

defendant to raise mistake-of-age as an affirmative

defense. We consider Fletcher’s arguments in turn.

We may dispatch quickly with Fletcher’s contention

that § 2251 requires the government to prove a

defendant’s knowledge of the victim’s age. As relevant

here, section 2251(a) provides:

Any person who employs, uses, persuades, induces,

entices, or coerces any minor to engage in, or who has

a minor assist any other person to engage in, or who

8 No. 08-3195

transports any minor in or affecting interstate or

foreign commerce, or in any Territory or Possession

of the United States, with the intent that such minor

engage in, any sexually explicit conduct for the pur-

pose of producing any visual depiction of such

conduct or for the purpose of transmitting a live

visual depiction of such conduct, shall be punished

as provided under subsection (e)[.]

18 U.S.C. § 2251(a).

Contrary to Fletcher’s assertion that Congress intended

to include a knowledge requirement as to the victim’s

age, there is direct evidence that it expressly considered

and rejected such a requirement. As explained in the

House Conference Report:

The Senate Bill contains an express requirement in

proposed section 2251(a) that the crime be com-

mitted ‘knowingly.’ The House amendment does not.

The Conference substitute accepts the House provi-

sion with the intent that it is not a necessary element of

a prosecution that the defendant knew the actual age of

the child.

H.R. Rep. No. 95-811, at 5 (1977) (Conf. Rep.) (emphasis

added); see also S. Rep. No. 95-601, at 5 (1977). This

change conformed to the response of the Justice Depart-

ment to an earlier version of the proposed legislation.

The Justice Department pointed out that the word “know-

ingly” in § 2251 should be removed so that the bill

would not be “subject to an interpretation requiring the

Government to prove the defendant’s knowledge . . . [of]

No. 08-3195 9

the age of the child.” S. Rep. No. 95-438, at 23 reprinted

in 1977 U.S.C.C.A.N. 40.

The Supreme Court has likewise concluded, albeit in

dicta, that § 2251(a) contains no knowledge requirement

as to the victim’s age. The Court referenced the legisla-

tive history above when interpreting 18 U.S.C. § 2252,

which prohibits “knowingly” shipping, receiving, or dis-

tributing images of minors engaging in sexually ex-

plicit conduct. In contrasting § 2252 with § 2251(a), the

Court pointed out that in 1977 when Congress amended

the two statutes “the new bill retained the adverb ‘know-

ingly’ in § 2252 while simultaneously deleting the word

‘knowingly’ from § 2251(a).” United States v. X-Citement

Video, Inc., 513 U.S. 64, 76 (1994). This deletion was in-

tended to reflect Congress’s “ ‘intent that it is not a neces-

sary element of a prosecution [under § 2251(a)] that the

defendant knew the actual age of the child.’ ” Id. (quoting

S. Rep. No. 95-601, at 5 (1977)). The Court observed that

such an omission made sense in light of “the reality that

producers are more conveniently able to ascertain the

age of performers.” Id. at 77 n.5. Although Fletcher

points out that the Supreme Court in X-Citement

Video did not specifically consider § 2251(a) in light of the

1984 amendments (which had already passed when the

case was decided), he fails to identify anything about

those amendments that would alter our analysis.

Citing X-Citement Video, we too have noted that knowl-

edge of the performer’s age is not an element of a prose-

cution for production of child pornography under

§ 2251(a). See United States v. Johnson, 376 F.3d 689, 693 (7th

10 No. 08-3195

Cir. 2004) (“It is true that the commission of the completed

offense under § 2251(a) . . . contains no requirement that

the defendant know that the performer is a minor.”). This

conclusion is in line with every circuit to have con-

sidered the issue. See United States v. Pliego, 578 F.3d 938,

943 (8th Cir. 2009) (district court did not abuse discre-

tion in refusing to instruct jury that knowledge of

victim’s age is an element of § 2251(a)); United States v.

Malloy, 568 F.3d 166, 171 (4th Cir. 2009) (“[K]nowledge

of the victim’s age is [not] . . . an element of the of-

fense[.]”); United States v. Deverso, 518 F.3d 1250, 1257

(2008) (same); United States v. Griffith, 284 F.3d 338, 349

(2d Cir. 2002) (rejecting defendant’s argument that

district court erred by omitting scienter of age in jury

instructions for § 2251(a) prosecution); United States v.

U.S. Dist. Court, 858 F.2d 534, 538 (9th Cir. 1988) (“The

defendant’s awareness of the subject’s minority is not

an element of the offense.”). We thus reject Fletcher’s

claim that knowledge of the victim’s age is an element

of the offense. Accordingly, the district court properly

refused Fletcher’s request to instruct the jury as much.

Nor are we persuaded by Fletcher’s argument that

§ 2251(a) violates his right to equal protection if it is

read without the scienter element that he proposes.

Fletcher maintains that by targeting producers of child

pornography for strict liability Congress has created an

irrational and arbitrary distinction between those

cases involving the sexual exploitation of children where

knowledge of the victim’s age is an element of the of-

fense and those where it is not. But this argument goes

nowhere. Those statutes requiring knowledge of a

No. 08-3195 11

victim’s age—receiving, distributing, or possessing child

pornography—are all readily distinguishable from

the production of child pornography, where “the perpe-

trator confronts the underage victim personally and

may reasonably be required to ascertain that victim’s

age.” X-Citement Video, 513 U.S. at 72 n.2; see also U.S. Dist.

Court, 858 F.2d at 544 (“Those who arrange for minors

to appear in sexually explicit materials are in a far

different position from those who merely handle the

visual images after they are fixed on paper, celluloid or

magnetic tape.”). Thus, Congress clearly had a rational

basis for singling out producers of child pornography

for strict liability. Cf. Canto v. Holder, 593 F.3d 638, 641 (7th

Cir. 2010) (Congress had rational reason for differing

definitions of “aggravated felony” in Immigration Code).

Fletcher next argues that if the government need not

prove knowledge of age to convict, the statute cannot

withstand constitutional scrutiny unless we read in a

mistake-of-age defense. As discussed above, no such

defense is included in the text of the statute, and the

legislative history makes clear that none was intended.

Fletcher asserts, however, that without the defense the

statute chills conduct protected by the First Amend-

ment—namely, the creation of non-obscene pornog-

raphy featuring adult actors who may appear young.

The government counters that we need not reach the

argument because Fletcher neither formally presented a

mistake-of-age defense, nor would he qualify for one.

However, as the government must acknowledge, the

First Amendment overbreadth doctrine is one of the

few exceptions to the ordinary rule that “a person to

12 No. 08-3195

whom a statute may constitutionally be applied may not

challenge that statute on the ground that it may conceiv-

ably be applied unconstitutionally to others in situa-

tions not before the court.” New York v. Ferber, 458 U.S.

747, 767 (1982). The overbreadth doctrine allows an

individual whose conduct could be constitutionally

regulated by a statute drawn with the requisite

specificity to nevertheless attack the statute in light of

the danger that it may chill protected expression by

those who fear criminal sanctions. Id. at 768 n.21.

In Ferber, the Supreme Court considered a New York

statute prohibiting the knowing promotion of a sexual

performance of a child by distributing material depicting

such a performance. Ferber, 458 U.S. at 749. Noting the

“surpassing importance” of the state’s interest in pre-

venting sexual exploitation and abuse of minors, the

Court concluded that States “are entitled to greater

leeway in the regulation of pornographic depictions of

children.” Id. at 756-57. The Court thus concluded that

child pornography is unprotected by the First Amend-

ment and that the state statute permissibly attacked the

problem of sexual abuse of children by punishing the

distribution of child pornography. Id. at 765-66. The

Court in Ferber also rejected the defendant’s overbreadth

challenge to the statute, concluding that the statute’s

legitimate reach outweighed any potential it may have

had to chill distribution of protected material. Id. at 773.

As explained in Ferber, an overbroad statute must

reach a “substantial number of impermissible applica-

tions” before it may be considered facially invalid. Id.

No. 08-3195 13

at 771 (emphasis added). Thus, the relevant question for

us is whether § 2251 as written risks chilling such a sub-

stantial amount of protected conduct that the absence of

a mistake-of-age defense outweighs the government’s

indisputably compelling interest in protecting children

from the documented ills of child pornography.

Only one court to have considered the question has

deemed it necessary to read a mistake-of-age defense

into the statute. Not surprisingly then, Fletcher relies

almost entirely on the Ninth Circuit’s opinion in

United States v. U.S. District Court, wherein a

divided panel concluded in a mandamus action that

the defendant must be allowed to present a narrow

mistake-of-age defense at his trial for violating § 2251(a).

See 858 F.2d at 543-44. The United States sought a writ of

mandamus to prevent the defendant from presenting

evidence that the sixteen-year-old girl appearing in a

pornographic film had deceived the entire adult enter-

tainment industry with false official documents, her

physical appearance, “apparent sexual experience,” and

prior and subsequent appearances in other X-rated films

distributed nationally.1 Id. at 540. The majority in

United States v. U.S. District Court thought that without

1

The child performer in U.S. District Court was Traci Lords,

who made somewhere between 80 and 100 X-rated movies

while she was a minor. “An incredibly developed, full-figured

girl, she easily duped photographers, producers and directors

(with the help of a false birth certificate and driver’s license).”

The Internet Movie Database, http://www.imdb.com/name/

nm0000183/bio (last visited Dec. 28, 2010).

14 No. 08-3195

a mistake-of-age defense, § 2251(a) would deter producers

of adult pornography from creating films with youthful

adult actors. This in turn would frustrate both youthful-

looking adult actors’ attempts to find work and stifle

the ability of audiences seeking pornography with young-

looking actors to find it. Id.

We are mindful of the Court’s caution to avoid strict

liability when it has the “collateral effect of inhibiting

the freedom of expression.” Smith v. State of Cal., 361 U.S.

147, 151 (1959). Nonetheless, for the reasons discussed

below we conclude, like every other circuit to have con-

sidered the question but the Ninth, that the statute sur-

vives constitutional scrutiny without a mistake-of-age

defense.

First, we reject Fletcher’s contention that the Constitu-

tion necessarily requires a scienter element as to the age

of the victim. Fletcher points to the general rule that a

statute without a scienter element raises serious con-

stitutional doubts. But as both the Supreme Court and

our sister circuits have noted, the production of child

pornography may be analogized to those sex offenses,

like statutory rape, that have traditionally been ex-

empted from the common-law presumption of mens rea.

See X-Citement Video, 513 U.S. at 72 n.2 (citing Morissette

v. United States, 342 U.S. 246, 251 n.8 (1952) (exempting

from mens rea requirement “sex offenses, such as rape”

where victim’s actual age is determinative despite defen-

dant’s “reasonable belief” that victim has attained age

of consent)); United States v. Wilson, 565 F.3d 1059, 1068

(8th Cir. 2009) (“[T]he background assumption of mens

No. 08-3195 15

rea is inappropriate for some strict liability sex crimes,

such as statutory rape.”). As discussed above, it makes

sense that the knowledge requirement would differ for

those crimes, like statutory rape and the production of

child pornography, where the perpetrator confronts his

victim directly. See Gilmour v. Rogerson, 117 F.3d 368,

372 (8th Cir. 1997) (“Unlike most distributors, the

sexually exploitive producer deals directly with the

child victim, like the statutory rapist who has tradi-

tionally been denied a mistake-of-age defense.”); see also 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.”). Thus,

the producer of child pornography, like the statutory

rapist who confronts his victim directly, may be expected

to be accountable for ascertaining the victim’s age.

Second, the compelling nature of the interest in pro-

tecting children from exploitation supports putting the

risk of error on producers. As should be self-evident,

protecting children from sexual exploitation and abuse

is a governmental objective of critical importance. See,

e.g., Ferber, 458 U.S. at 758 & n.9 (citing numerous leg-

islative and literary findings detailing harmful effects

attendant to the use of children in pornography); United

States v. Pugh, 515 F.3d 1179, 1197-98 (11th Cir. 2008)

(recognizing that “Congress repeatedly has stressed the

terrible harm child pornography inflicts on its victims”);

Johnson, 376 F.3d at 695 (citing Ferber). Even more than

the passive viewer of child pornography, the creator

of such material not only contributes to but is directly

16 No. 08-3195

responsible for the exploitation of the child victim. Thus,

§ 2251(a) targets the very source of the harm. Recognizing

a mistake-of-age defense would clearly be at odds with

this compelling government objective. Moreover, Con-

gress may legitimately conclude that even a willing or

deceitful minor is entitled to governmental protection

from “self-destructive decisions” that would expose him

or her to the harms of child pornography. Malloy, 568

F.3d at 175; (citing Gilmour, 117 F.3d at 372).

With this in mind, we are hard-pressed to conclude that

the plainly legitimate sweep of the statute is outweighed

by the possibility that the production of some protected

pornography may be chilled. See Osborne v. Ohio, 495

U.S. 103, 112 (1990). For his part, Fletcher has presented

no evidence that legitimate producers of pornography

(which he was not) are deterred by the existence of strict

liability statutes like § 2251(a). Additionally, the economic

incentive for producers of adult pornography serves to

reduce any chilling effect the statute may have. See

Ferber, 458 U.S. at 772 (noting possibility that individual

with “economic incentive” is less likely to be deterred

than “the employee who wishes to engage in political

campaign activity”); Malloy, 568 F.3d at 176 (“[P]roducers

of adult pornography who wish to use youthful-looking

subjects will not be deterred by § 2251(a) for profit

reasons: pornography is lucrative. High demand creates

powerful incentives that will not be inhibited by a

slim chance of prosecution.”). And although the theo-

retical possibility exists that every diligent attempt at

age verification may fail, we think such a risk is small

and does not create a “substantial” burden on protected

No. 08-3195 17

expression. See Gilmour, 117 F.3d at 372-73 (“In this infor-

mation age, a prudent photographer or movie producer

may readily and independently confirm the age of

virtually every young-looking model.”); Malloy, 568 F.3d

at 176 n.6 (“While it is certainly true . . . that documents

can be forged . . . the originals exist somewhere . . . and

the producer of pornography, because he has direct

contact with the subject, has access to the original docu-

ments[.]”) (citing dissenting opinion in U.S. Dist. Court, 858

F.2d at 540). Furthermore, legitimate producers of

adult pornography are unlikely to be deterred merely by

the fact that they must verify an actor’s age—they are

already required to do so now. 18 U.S.C. § 2257(b)(1)

(requiring a producer of pornography to “ascertain, by

examination of an identification document containing

such information, the performer’s name and date of

birth”); X-Citement Video, 513 U.S. at 77 n.5 (noting that

“Congress has independently required both primary

and secondary producers to record the ages of performers

with independent penalties for failure to comply”).

Finally, most individuals targeted for prosecution

under § 2251(a) are those who, like Fletcher, are either

well-aware of the victim’s minority or failed to undertake

any serious effort to ascertain the victim’s age. Malloy,

568 F.3d at 176 (noting that because children de-

picted in child pornography frequently cannot be found,

prosecutors must rely on pictures to show that subject is

a minor and therefore prosecute those cases where

the subject is “unmistakably a child”).

Given the competing social factors on both sides, we

believe that § 2251 withstands constitutional scrutiny

18 No. 08-3195

without a mistake-of-age defense. Particularly when

judged in relation to the legitimate sweep of the statute,

we consider it unlikely that pornography produc-

tion will be substantially chilled in the narrow subset of

pornography featuring “youthful” appearing actors. After

considering the social costs on both sides and the lack

of evidence that the statute will significantly impact

legitimate producers of adult non-obscene pornography,

it is not difficult to conclude that the scales tip in favor

of providing the most protection possible for minors by

requiring strict liability as to the age of the subject. See

United States v. Williams, 553 U.S. 285, 292 (2008)

(overbreadth doctrine “seeks to strike a balance between

competing social costs”). For the foregoing reasons, we

join every other circuit to have considered the issue

since the Ninth Circuit decided United States v. U.S.

District Court and conclude that the First Amendment

does not mandate a mistake-of-age defense to prosecu-

tions under § 2251(a). See United States v. Humphrey,

608 F.3d 955, 962 (6th Cir. 2010) (First Amendment con-

cerns do not require engrafting mistake-of-age defense

onto § 2251(a)); Malloy, 568 F.3d at 173 (concluding that

“no reasonable mistake of age defense is constitu-

tionally required” under § 2251(a)); Pliego, 578 F.3d at 943-

44 (rejecting Ninth Circuit’s rationale for mistake of

age defense and concluding that First Amendment does

not require such a defense); Deverso, 518 F.3d at 1258

(“[T]he Constitution does not mandate a mistake of age

defense under § 2251.”); United States v. Crow, 164 F.3d

229, 236 (5th Cir. 1999) (defendant’s “assertion that

section 2251(a) is unconstitutional because it lacks a

scienter requirement is meritless”).

No. 08-3195 19

Fletcher next contends that the district court erred when

it denied his motion for judgment of acquittal based on

the government’s alleged violation of its “Petite policy.”

See Petite v. United States, 361 U.S. 529 (1960) (per curiam).

Memorialized in the U.S. Attorneys’ Manual, the so-

called Petite policy is a Justice Department policy pro-

hibiting successive state and federal prosecutions for

the same crime except when necessary to vindicate a

compelling federal law enforcement interest and then

only after an Assistant Attorney General has approved

the prosecution. See U.S. Attorneys’ Manual, § 9-2.031

Dual and Successive Prosecution Policy (“Petite Policy”);

Rinaldi v. United States, 434 U.S. 22, 25 n.5 (1977) (describing

Petite policy). The policy was formulated in response to

the dual sovereign doctrine allowing separate Federal

and State prosecutions for the same criminal act. See

Rinaldi, 434 U.S. at 28-29 (citing Bartkus v. Ill., 359 U.S. 121

(1959) & Abbate v. United States, 359 U.S. 187 (1959)).

Shortly before the federal grand jury returned its super-

seding indictment, Fletcher was convicted in McClean

County of two counts of aggravated criminal sexual

abuse, 720 ILCS 5/12-16(d), and two counts of child por-

nography, 720 ILCS 5/11-20.1(a)(1). The state court in-

dictments reveal that the child pornography counts

were based on charges that he knowingly photographed

Heather and Alena in acts of masturbation and sexual

intercourse, respectively.

The government disputes whether Fletcher waived his

argument because his motion for judgment of acquittal

was untimely (it was not, once the prison mailbox rule

20 No. 08-3195

is applied) and also makes much of whether there is

enough information in the record to assess whether it

in fact violated its Petite policy. But Fletcher’s argument

fails for the more straightforward reason that, as an

internal prosecutorial guideline, the Petite policy

“does not create a substantive right for the defendant

which he may enforce, and is not subject to judicial re-

view.” United States v. Mitchell, 778 F.2d 1271, 1276-77

(7th Cir. 1985) (collecting cases).

Fletcher relies heavily on Rinaldi, where the Supreme

Court did remand a case to the district court with in-

structions to dismiss because the government violated

its Petite policy. Rinaldi, 434 U.S. at 32; see also Petite, 361

U.S. at 530-31 (vacating and remanding for dismissal of

indictment on government’s motion). But Rinaldi does not

help Fletcher, because there the government itself had

acknowledged the Petite violation and moved to dismiss

the indictment under Fed. R. Crim. P. 48(a). Rinaldi, 434

U.S. at 25. The Court concluded that “[t]he defendant . . .

should receive the benefit of the policy whenever its applica-

tion is urged by the Government.” Id. at 31 (emphasis added).

Here, the government has urged no such action on

Fletcher’s behalf. Thus, as things stand, the district court

did not abuse its discretion by denying Fletcher’s motion

for a judgment of acquittal. See Mitchell, 778 F.2d at 1277.

We, note, however, our concern that a Petite violation

may have occurred here. Despite the government’s pro-

testations that from the record it is “impossible to

know” whether a Petite violation occurred, it certainly

appears that Fletcher’s prosecution for production and

No. 08-3195 21

possession of child pornography (Counts I and III) may

have run afoul of the policy.

The government complains that Fletcher’s reference to

his convictions on the Illinois Department of Correc-

tions website (which lists convictions for “Child

Porn/Film/Tape/Photo/Act”) does not provide enough

information to ascertain whether the state and federal

convictions overlap. In response, Fletcher asks that we

take judicial notice of his indictments in McClean

County, which he submitted with his reply brief. As

detailed above, the indictments charge that he photo-

graphed both Alena and Heather engaged in sexually

explicit behavior. Thus, despite the government’s posited

differences between his federal and state convictions, it

is difficult to believe that his federal convictions did

not implicate the Petite policy, which does not demand

exact overlap. It applies to any prosecution that follows

a “prior state or federal prosecution based on sub-

stantially the same act(s) or transaction(s).” U.S. Attorney’s

Manual at § 9-2.031; see also Thompson v. United States,

444 U.S. 248 (1980) (per curiam) (describing “firmly

established policy” forbidding U.S. Attorneys from prose-

cuting any person whose “alleged criminality was an

ingredient of a previous state prosecution”).

Moreover, the government’s asserted ignorance about

whether the prosecutions in fact overlapped begs the

question of whether it undertook the proper investiga-

tion before instigating the federal prosecution. Thus, we

urge the government to look into the matter, and act

accordingly if Fletcher’s federal convictions do indeed

22 No. 08-3195

run afoul of the Petite policy, which serves an

important function in “protecting the citizen from any

unfairness that is associated with successive prosecu-

tions based on the same conduct.” Rinaldi, 434 U.S. at

27; see id. at 29 n.14 (quoting an Attorney General’s obser-

vation that in the area of state and federal prosecu-

tions for similar conduct “those of us charged with law

enforcement responsibilities have a particular duty to

act wisely and with self-restraint”).2

Given the established precedent that adherence to the

Petite policy is neither constitutionally required nor does

it create an enforceable right for a defendant, we likewise

reject Fletcher’s due process and equal protection chal-

lenges. Both are grounded in the alleged Petite policy

violation, and neither of his arguments provide

grounds for us to revisit our settled holding. Fletcher’s

undeveloped equal protection claim also does not

survive when construed as an accusation of selective

prosecution. To succeed, it would be necessary for

Fletcher to show that he was both singled out for pros-

ecution where others were not and that the selection

was based on an impermissible ground, such as race or

religion. United States v. Darif, 446 F.3d 701, 708 (7th Cir.

2006). Despite a bare assertion that it is “arbitrary and

irrational” that some individuals may avoid prosecution

if the Petite policy is adhered to, Fletcher produces no

evidence that he was singled out or that his prosecution

2

We expect that the government will keep us apprised of

the results of its investigation into the potential Petite violation.

No. 08-3195 23

was otherwise unlawful. See Mitchell, 778 F.2d at 1277

(rejecting defendant’s claim of selective prosecution

based on alleged Petite policy violation).

Fletcher next claims that his due process rights were

violated when investigating officers failed to preserve

allegedly exculpatory evidence. At the close of the gov-

ernment’s case-in-chief, the district court denied

Fletcher’s oral motion for a judgment of acquittal based

on the alleged failure to preserve evidence. Fletcher

bases his claim on the officers’ handling of the digital

evidence obtained when they executed the search warrant

in his home. During its search, the government seized a

computer, a Fuji digital camera, three memory cards

from the camera, and many compact discs. One of the

camera memory cards was in Fletcher’s pocket. Although

officers wore gloves during the search to preserve

possible trace evidence, later when they examined the

seized evidence they did not wear gloves or attempt to

preserve fingerprints or other trace evidence on the

surface of the seized items. When questioned at trial

about the failure to preserve possible trace evidence,

the lead detective explained that in light of Heather’s

accusations that Fletcher had taken the photographs

and committed the sexual abuse there was no need to

preserve possible trace evidence. In his words, the case

was not a “who-did-it type case.”

At trial, Fletcher presented expert testimony from

Wayne Lapen, a former officer with the Peoria Police

Department who helped found that department’s Cyber

Crimes Unit. Officer Lapen opined that the officers in-

24 No. 08-3195

volved should have collected trace and fingerprint evi-

dence “as a matter of course” and that their failure to

do so “compromised” the seized evidence.

When a defendant alleges, like Fletcher, that the gov-

ernment failed to preserve potentially exculpatory evi-

dence, we apply the standard articulated in Arizona v.

Youngblood, 488 U.S. 51 (1988). Youngblood applies when, as

here, the government failed to preserve evidence that

“could have been subjected to tests, the results of which

might have exonerated the defendant.” Youngblood, 488

U.S. at 57 (emphasis added); see also United States v. Kimoto,

588 F.3d 464, 474-75 (7th Cir. 2009) (citing Youngblood

in articulating applicable inquiry for a claim that the

government destroyed potentially useful information

versus a Brady claim of withholding exculpatory evi-

dence). In that situation, there is no denial of due process

“unless a criminal defendant can show bad faith on the

part of the police.” Youngblood, 488 U.S. at 57-58. Thus,

Fletcher must show: (1) bad faith by the government,

(2) the exculpatory nature of the evidence was apparent

before its destruction, and (3) that he could not obtain

the same evidence anywhere else. Kimoto, 588 F.3d at

475; Hubanks v. Franks, 392 F.3d 926, 931 (7th Cir. 2004)

(citing Youngblood, 488 U.S. at 58).

Fletcher’s argument fails on both the first and second

prongs. As for showing bad faith, Fletcher demonstrates

at best that the government may have been careless

when officers failed to consider the possibility that po-

tential trace evidence may have been useful to

Fletcher’s defense. As the district court recognized, it

No. 08-3195 25

was inappropriate for the government to jump to

the conclusion that the accusations against Fletcher elimi-

nated the possibility that someone else in Fletcher’s

house committed the crimes. But bad faith requires more

than carelessness, it requires a “conscious effort to sup-

press exculpatory evidence.” United States v. Chaparro-

Alcantara, 226 F.3d 616, 624 (7th Cir. 2000) (quoting Jones

v. McCaughtry, 965 F.2d 473, 477 (7th Cir. 1992)). Fletcher

presents no evidence of such an effort; instead, he asks

us to presume that the government’s failure to anticipate

that he would argue that someone else committed the

crimes equates to bad faith on its part. We are unwilling

to so. Although we are disappointed by the govern-

ment’s failure to preserve all of the evidence that may

have assisted Fletcher, he has not shown that its failure

to do so here amounted to a willful effort to hide

helpful evidence.

Likewise, there is no indication that the government

knew that there may have been exculpatory evidence on

the digital media before it handled the seized items

without gloves. Indeed, even now nothing in the record

suggests that there were actually fingerprints that would

have exculpated Fletcher. Despite Fletcher’s attempt to

prove at trial that other individuals took the images

and video and put them on his computer, he presented

little evidence to support this theory. The trial testimony

supported the conclusion the government made when

it first seized the evidence: that the digital media, found

in his home and his own pants pocket, was created by

and belonged to Fletcher. At worst, the government

assumed prematurely that Heather was telling the truth

26 No. 08-3195

about what transpired at Fletcher’s home and failed to

preserve evidence that may have supported a different

conclusion. Nothing about this assumption suggests

the government actually knew beforehand that exculpa-

tory “trace” evidence may have been on the seized

items—this conclusion is buttressed by the fact that the

record still fails to support the notion that such trace

evidence would have exonerated Fletcher. Thus, the

district court did not clearly err by denying Fletcher’s

motion for judgment of acquittal based on the handling

of the evidence. See Kimoto, 588 F.3d at 490-91.

That leaves Fletcher’s claim that the district court erred

by refusing to dismiss a particular juror, who served only

as an alternate, for cause. After seating the twelve regular

jurors, the court called eight others for consideration as

alternates. One of these individuals revealed that she

worked as an information systems technician for the

Galesburg, Illinois Police Department and that two to

three years earlier she had taken a five-day computer

forensics class from the government’s computer expert

James Feehan. Fletcher moved to strike the juror based

on her “relationship with Feehan.” The district court

denied Fletcher’s request, reasoning that the five-day

course did not provide an appropriate basis to strike

the juror for cause. Neither party exercised a peremptory

challenge. The individual was seated as an alternate,

but did not serve on the regular jury, which remained

intact throughout trial and deliberations.

Fletcher now maintains that we should presume that

the alternate juror was biased against him because she

No. 08-3195 27

was a “former student” of Feehan and because she

worked for the Galesburg Police Department. Fletcher

contends that her affiliation with law enforcement ren-

dered her incapable of fairly considering his defense

that officers mishandled the evidence in his case.

Notably, he fails to mention that she served only as an

alternate until his reply brief, where he cursorily

contends that it should make no difference whether

she was actually empaneled or not.

Because of the district court’s ability to evaluate juror

credibility during voir dire, we accord great deference to

the court’s ruling on a challenge for cause. United States

v. Ray, 238 F.3d 828, 837 (7th Cir. 2001). Moreover, we

will overturn a conviction based on the district court’s

refusal to remove a juror only if the defendant can show

prejudice. See United States v. Vega, 72 F.3d 507, 512 (7th

Cir. 1995). We see no abuse of discretion in the district

court’s conclusion that the juror’s connection to Feehan

was too attenuated to support a dismissal for cause.

Indeed, we are hard-pressed to understand why we

would, as Fletcher urges, presume “implied bias” on this

record. We doubt that the juror’s enrollment in a five-day

course some two to three years prior so connects her to

Feehan that we would disbelieve her assurances that

she could fairly view the evidence. And her employment

for the Galesburg Police Department alone does not, as

Fletcher suggests, imply an unacceptable degree of bias.

United States v. Polichemi, 219 F.3d 698, 704 (7th Cir.

2000) (“[G]overnment employment alone is not, and

should not be, enough to trigger the rule under which an

employee is disqualified from serving as a juror in a

28 No. 08-3195

case involving her employer.”). Finally, even if the con-

nections to law enforcement were troubling, Fletcher

cannot demonstrate prejudice from the alternate juror’s

mere presence at his trial. She did not assist in delibera-

tions or deciding the case, and Fletcher has presented

nothing to substantiate his claim that her very presence

“tainted” the verdict. Cf. id. at 705 (no reversible error

when juror who should have been stricken for cause

was instead excused through peremptory challenge

and thus did not decide case). The district court did not

abuse its discretion by seating the juror in question as

an alternate.

III.

For the foregoing reasons, we A FFIRM Fletcher’s con-

victions in all respects.

2-10-11