United States v. McGarity

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 6, 2012

No. 09-12070

JOHN LEY

________________________

CLERK

D. C. Docket No. 08-00022-CR-3-LAC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NEVILLE MCGARITY,

a.k.a. Wraith,

DANIEL CASTLEMAN,

a.k.a. Chingachgook,

GARY LAKEY,

a.k.a. Eggplant,

MARVIN LAMBERT,

a.k.a. Methuselah,

RONALD WHITE,

a.k.a. Roadkill,

JAMES FREEMAN,

a.k.a. Mystikal,

WARREN MUMPOWER,

a.k.a. Lizzard,

Defendants-Appellants.

________________________

Appeals from the United States District Court

for the Northern District of Florida

_________________________

(February 6, 2012)

Before HULL and FAY, Circuit Judges, and VINSON,* District Judge.

FAY, Circuit Judge:

If “[a]ll the world’s a stage” as Shakespeare wrote,1 this case demonstrates

just how much the dimensions of that stage are shrinking with the advent of the

internet, at least in regards to child pornography. We are concerned here with the

fruits of a cooperative, multi-national criminal investigation directed at tracking a

sprawling international child pornography ring, comprised of as many as 64

known individuals sharing more than 400,000 images and 1,000 videos of child

pornography across at least six countries. Ultimately, a joint task force arrested

fourteen members of the ring and charged them with offenses relating to child

pornography, although we have before us only the appeals of the following seven

*

Honorable C. Roger Vinson, Senior United States District Judge for the

Northern District of Florida, sitting by designation.

1

William Shakespeare, “As You Like It,” act 2, sc. 7.

2

defendants: Neville McGarity, Daniel Castleman, Gary Lakey, Marvin Lambert,

Ronald White, James Freeman, and Warren Mumpower.2

Faced with a 40-count Superseding Indictment, each defendant was tried

and convicted of engaging in a child exploitation enterprise (“CEE”), in violation

of 18 U.S.C. § 2252A(g); conspiring to advertise, transport/ship,3 receive, and

possess child pornography, and to obstruct an official proceeding, in violation of

18 U.S.C. §§ 371, 1512(k), 2251(d)(1) and (e), and 2252A(a)(1); receiving child

pornography, in violation of 18 U.S.C. §§ 2252A(a)(2); and obstructing justice, in

violation of 18 U.S.C. § 1512(c). Furthermore, all defendants but one, Ronald

2

We adjudicated four of the seven other co-defendants’ appeals in United

States v. Wayerski, 624 F.3d 1342 (11th Cir. 2010). We affirmed all four

defendants’ convictions for engaging in a child exploitation enterprise (“CEE”)

(Count One), in violation of 18 U.S.C.

§ 2252A(g). However, we concluded that the conspiracy in Count Two was a

lesser-included offense of engaging in a CEE and vacated on Double Jeopardy

grounds all four defendants’ Count Two convictions for conspiracy to commit

multiple child pornography-related offenses and to obstruct an official proceeding,

in violation of 18 U.S.C. §§ 371, 1512(k), 2251(d)(1) and (e), and 2252(a)(1) and

(b)(1). Id. at 1350-51.

There were no issues raised or discussed as to the other conviction counts in

Wayerski, including one co-defendant’s Count Forty conviction for obstructing an

official proceeding, in violation of 18 U.S.C. § 1512(c)(2).

3

Only defendant White was found not guilty of conspiring to transport and

ship child pornography, which was one of the five underlying conspiracies

specially charged by Count Two. However, White’s judgment improperly reflects

that he was convicted of conspiracy to transport and ship child pornography. The

district court shall amend its judgment accordingly.

3

White, were tried and convicted of advertising the exchange of child pornography,

in violation of 18 U.S.C. § 2251(d)(1) and (2); and knowingly transporting and

shipping child pornography, in violation of 18 U.S.C. § 2252A(a)(1). Lastly, to

compensate for harm to one victim depicted in the child pornography found in the

defendants’ possession, the sentencing judge ordered restitution against only one

of the defendants, James Freeman, in the amount of $3,263,758.4

The defendants raise numerous issues on appeal,5 although many require no

discussion.6 In relevant part, the defendants challenge the constitutionality of the

4

For reasons that were not clarified by a meticulous review of the record or

by oral argument, the Government sought restitution only from Freeman for that

victim’s injuries.

5

Because of the consolidated nature of this matter, the issues raised on

appeal are an amalgam of each defendant’s individual claims. At trial, the district

court deemed all defense objections to be joint in the absence of a defendant’s

election otherwise. However, there is no such uniformity on appeal. For example,

one of the defendants, Warren Mumpower, has chosen not to adopt the arguments

of his co-defendants; two others, Neville McGarity and Daniel Castleman, have

adopted in part the arguments of their co-defendants; and yet another two, Gary

Lakey and Marvin Lambert, have adopted in their entirety the arguments of their

co-defendants. Where relevant, we distinguish between the parties raising the

respective issue for appeal.

6

While the defendants raise 22 issues as characterized by the Government,

we find the following are meritless and do not warrant discussion:

1) whether the district court abused its discretion by overruling the defense

objection to evidence that individuals in the pornography were real minors who

had been abused (given most defendants had stipulated to that fact);

2) whether the district court plainly erred by admitting a CD with a label

4

CEE statute; the sufficiency of the Superseding Indictment in regards to Count

One and Count Forty; certain errors the district court purportedly made both

pretrial and during trial, including the district court’s purported failure to issue a

“unanimity” instruction regarding the CEE charge; the sufficiency of the evidence

regarding Count Twenty and Count Forty; and an alleged Double Jeopardy

violation based on the defendants’ convictions under Counts One and Two.7 The

defendants also challenge their sentences.

referring to Castleman and his daughter;

3) whether the district court erred in admitting evidence that McGarity

possessed more than 50,000 images and videos of child pornography;

4) whether the district court erred in not granting a mistrial because of the

prosecutor’s description of child pornography as “vile and reprehensible”;

5) whether the district court erred in not granting a mistrial because of the

prosecutor’s reference to the defendants as “pedophiles”;

6) whether the district court erred in admitting the defendants’ own

newsgroup posts;

7) whether the district court erred in applying a sentencing enhancement for

use of a computer in the commission of the defendants’ offenses;

8) whether the news service providers’ business records were improperly

admitted into evidence, either because they constituted impermissible hearsay or

they violated Crawford v. Washington, 541 U.S. 36 (2004); and

9) whether the district court committed cumulative error.

7

Having already rejected in Wayerski some similar issues to those now

raised by the defendants, we are bound by the Eleventh Circuit’s prior-panel rule

on those same issues. United States v. Smith, 122 F.3d 1355, 1359 (11th Cir.

1997) (“Under the prior panel precedent rule, we are bound by earlier panel

holdings . . . unless and until they are overruled en banc or by the Supreme

Court.”).

5

After review of the record and having had the benefit of oral argument, we

vacate Ronald White’s CEE conviction under Count One; vacate the other six

defendants’ convictions for conspiracy under Count Two; and vacate all of the

defendants’ convictions for statutory obstruction of justice under Count Forty. We

also vacate the restitution award against Freeman and remand for further

proceedings. In all other regards, we affirm.

I.

We delineate below both the relevant factual and procedural background.

As we must, we consider the factual background in the light most favorable to the

Government. See United States v. Glen-Archila, 677 F.2d 809, 812 (11th Cir.

1982).

A.

Discovery and Infiltration of Child Pornography Ring

In 2005, an informant notified an Australian constable, Brenden Power, and

others of the Queensland Police Service of the existence of a computer ring of

child pornography users, which operated exclusively through internet

newsgroups.8 The informant further notified Constable Power of which

8

Newsgroups operate in the “Usenet” section of what is commonly referred

to as the “internet.” Much like websites, which are located on the world wide web

and accessible by individuals over the internet through an internet service provider

6

newsgroups the ring was using, the ring’s encryption method,9 and the informant’s

own nickname within the ring, all of which permitted Constable Power to infiltrate

the ring.

When he began monitoring the ring, Constable Power discovered the

sophisticated nature of the ring’s operations, both in its day-to-day operations and

in its recruitment of new members. As to the former, the ring had a hierarchy in

place, in which a “core” of leaders—“Yardbird,” “Helen,” “Soft,” and

“Tex”—managed the ring, its operations, and its members. To assist the core

leadership, the ring also had officers tasked with specific roles, like security and

administration.

Additionally, the ring had a formal process in place for gaining new

members. The most involved leader, Yardbird, would identify potential members

based on their online history of posting child pornography. He would subsequently

invite those prospective members into the group upon completion of certain tests

designed to weed out potential law enforcement infiltrators. For example, most

invitees were required to find and post certain electronic files of child

(“ISP”), newsgroups are accessible through a news service provider (“NSP”).

9

The child pornography ring used a commercially available software

program known as Pretty Good Privacy (“PGP”) to encrypt their communications

into cipher or secret code.

7

pornography, as well as pass a timed child pornography test that provided 48

hours for completion.10 Once accepted as a member, an invitee was provided with

the accoutrements of membership: a PGP key that allowed him to decrypt group

postings; several documents pertaining to membership;11 and an introduction, via

online post, to the other group members.

Perhaps the most telling proof of the ring’s sophistication, though, came

from Constable Power’s investigation of the ring’s communications. The members

utilized a maze of rotating newsgroups and parallel newsgroup postings not only

to communicate with one another but also to hide their communications from

outsiders. As noted above, members of the ring were given separate keys for

encryption of newsgroup text posts and for binary uploads containing the images

and videos. The encryption keys were subject to change at Yardbird’s discretion.

10

Because of the illegality of posting child pornography and the extensive

familiarity with child pornography required to complete the tests, it was believed

by the ring members that law enforcement agents would be prevented from

gaining admission into the ring.

11

For example, one such document was entitled “Security and Encryption

FAQ,” and was written by somebody identifying himself as “Doctor WHO.” This

document was designed to “assist[] people in setting up their computer to be as

anonymous on the Internet as possible” through the use of encryption. Another

posted document, entitled “FAQ,” provided “a very broad overview of how the

group operate[d],” including reasons for certain security precautions and the

purpose of the ring itself.

8

Using those keys, the ring members employed a two-step process in

communicating with one another and posting child pornography. First, a member

would upload scrambled and encrypted binary files of child pornography to a

newsgroup location determined by Yardbird.12 Each such file was posted under a

specified subject line and attributed to the newsgroup nickname associated with

the poster. The uploader would then text an encrypted message to another

newsgroup in which the ring was active, advising of the upload, its location, and

providing pertinent instructions. The recipient members could then download the

encrypted message, decrypt and read it, and then follow the instructions contained

therein to locate and download the files containing child pornography. The ring

also employed other means of avoiding detection, like masking their headings

when posting messages or files,13 or changing the nicknames by which they were

known to each other.14

12

These locations were selected by Yardbird with the assistance of the ring

members, and were chosen because of their innocuous nature. Examples of the

newsgroups were ones involving cuisine and gardening.

13

Members masked their post headings either through the use of a remailer

or an anonymizer, both of which served to strip any identifying information from

the message and prevent identification of the poster.

14

With each rotating newsgroup, the defendants were told to invent a new

nickname, which was intended to be the only nickname used by the defendants

during the duration of the ring’s involvement in that newsgroup. The ring

9

Ultimately, the international reach of the child pornography ring became

apparent to Constable Power. An analysis of unmasked newsgroup posts in

conjunction with information obtained from corresponding NSPs enabled

Constable Power to determine just how far the ring reached: at its peak it had as

many as 64 known members operating in at least six different countries. Therefore,

in August 2006, Constable Power came to the United States, where he continued

his investigation in conjunction with the Federal Bureau of Investigation’s

Innocent Images Unit. The joint investigation continued for over one year. During

that time, law enforcement identified 22 members of the child pornography ring,

fourteen of whom became people of special interest. In all, the joint investigation

detected the upload by ring members of over 400,000 images and more than 1,000

videos from August 31, 2006 through December 15, 2007.15 Although not all of

those images and videos portrayed child pornography, many depicted the sexual

abuse of minors in graphic and grotesque detail.

members were discouraged from referring to each other by their former

nicknames, as it was believed such references would permit law enforcement to

make individual identifications. Nonetheless, each ring member was provided with

an encrypted list, which contained the nicknames by which each member had been

previously known. In most instances, the defendants here had each created in

excess of five nicknames.

15

Constable Power downloaded many of the binary and text postings of the

pornography ring, saving them onto two external hard drives.

10

Arrest of Members of Child Pornography Ring

On or about February 28, 2008, law enforcement agents simultaneously

executed search warrants at the defendants’ respective residences. Each search

warrant was carried out with alacrity with but one exception: when agents sought

to execute the warrant for Daniel Castleman by “knocking and announcing,” he

ignored their request for approximately thirty minutes. When they finally gained

entrance to Castleman’s home with the assistance of a locksmith, law enforcement

agents found him in his living room, running a destructive “wipe” program on his

computer. All the defendants except Castleman confessed their involvement with

child pornography and with the child pornography sharing ring in question.16 PGP

encryption keys of the type used by Constable Power to access the pertinent

newsgroup postings were found in possession of every defendant except Neville

McGarity.17 After being taken into custody and being incarcerated together, six of

16

None of the defendants’ confessions were recorded.

17

It should be noted that, soon after the search warrants were executed,

Yardbird posted an agreed-upon code-phrase in the ring’s newsgroup to warn the

members of law enforcement actions. None of the “core” ring members were

arrested by American authorities, although one member, Christopher Stubbings

a/k/a “Helen,” was later identified and successfully prosecuted in England.

11

the seven also admitted to one another their membership in the child pornography

ring.18

B.

On February 21, 2008, a Northern District of Florida grand jury indicted

twelve defendants on 35 counts of child-related offenses. Almost one month later,

the Government filed a Superseding Indictment against fourteen defendants,

including the original twelve first named, now alleging 40 counts of criminal

offenses related to child pornography.

At trial, after being presented with the evidence detailed above, a jury found

the defendants guilty of various child pornography-related offenses, as noted

above. Each of the defendants was sentenced to life imprisonment for engaging in

a CEE, as well as other sentences based upon their specific convictions. This

appeal ensued.

II.

Various standards of review apply to the amalgamated issues raised on this

consolidated appeal. We review de novo the constitutionality of a statute. United

States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009). A district court's

18

John Mosman, a defendant in Wayerski, testified at trial that all

defendants but Castleman admitted their membership in the child pornography

ring, as well as identified certain information relevant to their membership therein.

12

determination regarding sufficiency of the indictment is a question of law subject

to de novo review. See United States v. Pendergraft, 297 F.3d 1198, 1204 (11th

Cir. 2002). However, we review a district court’s evidentiary ruling for abuse of

discretion. See United States v. Langford, 647 F.3d 1309, 1319 (11th Cir. 2011)

(citation omitted). “A challenge to a jury instruction presents a question of law

subject to de novo review.” United States v. Ndiaye, 434 F.3d 1270, 1280 (11th

Cir. 2006). While a district court has “broad discretion in formulating its charge as

long as the charge accurately reflects the law and the facts,” Spoerke, 568 F.3d at

1244 (quotation marks omitted), we review for abuse of discretion a district court's

refusal to give a jury instruction. See United States v. Puche, 350 F.3d 1137, 1150

(11th Cir. 2003). Whether the evidence is sufficient to sustain a defendant's

conviction is a question of law, which we review de novo. United States v. To,

144 F.3d 737, 743 (11th Cir. 1998). The denial of a motion for a mistrial is

reviewed for abuse of discretion. United States v. Campa, 529 F.3d 980, 992 (11th

Cir. 2008). Allegations of prosecutorial misconduct present mixed questions of

fact and law that are reviewed de novo. United States v. Noriega, 117 F.3d 1206,

1218 (11th Cir. 1997).

A district court's determination of facts that support enhancements under the

Sentencing Guidelines are findings of fact subject to the clearly erroneous

13

standard. See United States v. Singh, 291 F.3d 756, 763 (11th Cir. 2002). The

application of the Sentencing Guidelines to the facts as found by the district court

is a question of law that we review de novo. See United States v. Yates, 990 F.2d

1179, 1182 (11th Cir. 1993). A district court's findings of fact for determining a

base offense level are subject to the clearly erroneous standard of review. See

United States v. Kummer, 89 F.3d 1536, 1544 (11th Cir. 1996). Whether a

particular guideline applies to a given set of facts is a question of law subject to de

novo review. See United States v. Kirkland, 985 F.2d 535, 537 (11th Cir. 1993).

When a defendant fails to object to a decision by the lower court, the issue is

reviewed for plain error. See United States v. Mitchell, 146 F.3d 1338, 1342 (11th

Cir. 1998). Otherwise, we review the issue de novo. United States v. Ferreira, 275

F.3d 1020, 1024 (11th Cir. 2001).

Now, we turn to the errors alleged by the defendants.

III.

All of the defendants challenge the constitutionality of the CEE statute, 18

U.S.C. § 2252A(g), on grounds that the statute is unconstitutionally vague and

overbroad.19 Section 2252A(g) states, in relevant part:

19

The defendants argue these issues are mutually exclusive, to which the

Government responds in kind. However, within the particular circumstances of

this case, we find that the defendants’ arguments in this regard are properly

14

A person engages in a child exploitation enterprise . . . if the person

violates section 1591, section 1201 if the victim is a minor, or chapter

109A (involving a minor victim), 110 (except for sections 2257 and

2257A), or 117 (involving a minor victim), as a part of a series of

felony violations constituting three or more separate incidents and

involving more than one victim, and commits those offenses in

concert with three or more other persons.

18 U.S.C. § 2252A(g)(2) (emphasis added).

The defendants contend that the statute is unconstitutionally vague and

overbroad because 1) the term “series” is ambiguous and lacks definition; 2) the

phrase “three or more separate incidents” is ambiguous as to whether each incident

must involve “more than one victim”; and 3) the statute does not specify whether

the same three individuals must be involved in each of the predicate felonious

incidents.

Our precedent in Wayerski forecloses the defendants’ vagueness claims. In

Wayerski, four members of the same child pornography-sharing ring in question

here were convicted for similar offenses, including engaging in a CEE, in

considered only under the rubric of vagueness, as the overbreadth doctrine is

reliant on a First Amendment analytical framework wholly inapplicable here. See,

e.g., United States v. Dean, 635 F.3d 1200, 1204 (11th Cir. 2011) (applying

overbreadth doctrine to consideration of whether a statute criminalizing child

pornography chilled speech is protected by the First Amendment).

15

violation of § 2252A(g).20 Wayerski, 624 F.3d at 1346. The Wayerski defendants

argued that § 2252A(g) was unconstitutionally vague because the statute did not

clarify how a “series of felony violations constituting three or more separate

incidents” may occur, id. at 1347-48, and thus did not “provide fair notice of what

conduct it proscribes,” id. at 1347.

Our Court rejected those contentions, explaining that “[n]othing about

§ 2252A(g) is vague when applied in the context of the defendants’ actions.” Id.

at 1348. Specifically, we noted in Wayerski:

Section 2252A(g) defines the predicate offenses that must be committed.

The defendants’ activity here satisfied the predicate offenses . . . . The

offenses involved much more than three separate instances and more than

one victim, and they occurred in concert with more than three people.

Id. Accordingly, we rejected the defendants’ vagueness challenge because “[o]ne

to whose conduct a statute clearly applies may not successfully challenge it

[facially] for vagueness.” Id. (quoting Bama Tomato Co. v. U.S. Dep’t of Agric.,

112 F.3d 1542, 1547 (11th Cir. 1997)) (alteration in original).

20

The Wayerski defendants’ predicate offenses were similar to those of the

defendants in this case. All four of the Wayerski defendants were convicted of

advertising child pornography, in violation of 18 U.S.C. § 2251(d)(1), and two of

the Wayerski defendants were convicted of transporting or shipping child

pornography, in violation of 18 U.S.C. § 2252A(a)(1), and receipt of child

pornography, in violation of 18 U.S.C. § 2252A(a)(2).

16

Identical reasoning applies here. The defendants participated in the same

child pornography ring as the Wayerski defendants. And like the Wayerski

defendants, the CEE predicate offenses for which the defendants here were

convicted all fall within Chapter 110 of Title 18 of the U.S. Code and are thus

specifically identified as predicate offenses in the text of § 2252A(g).

Moreover, like the Wayerski defendants’ crimes, the defendants’ crimes

here “involved much more than three separate instances and more than one victim,

and they occurred in concert with more than three people.” Wayerski, 624 F.3d at

1348. As we explained in Wayerski:

[T]he defendants participated in a sophisticated group of

approximately 45 individuals who advertised and exchanged over the

Internet thousands of images and videos of child pornography

involving numerous minor children . . . . During the course of the

group’s existence over 400,000 images and videos . . . were

advertised, transported, and/or received by its members.

Id. The defendants’ actions clearly fall within the intended reach of the CEE

statute, so their complaints of vagueness are unavailing. Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982) (“A [defendant] who

engages in some conduct that is clearly proscribed cannot complain of the

vagueness of the law as applied to the conduct of others.”).

17

Even assuming, arguendo, that the defendants could facially attack the

statute for vagueness, the Wayerski Court rejected this exact claim. In Wayerski,

we concluded that § 2252A(g) survived a facial vagueness challenge because it

was “clear what the [statute] as a whole prohibits.” Wayerski, 624 F.3d at 1349

(quotation marks and citation omitted). Specifically, we explained that it is clear to

a person of ordinary intelligence that § 2252A(g)’s plain language prohibits “the

commission of specified child pornography offenses that occur as a series of three

or more separate instances, involving two or more victims, and three or more

persons acting in concert with the defendant.” Id. at 1349; see United States v.

Williams, 553 U.S. 285, 304 (2008) (explaining that a criminal statute is void for

vagueness where it “fails to provide a person of ordinary intelligence fair notice of

what is prohibited, or is so standardless that it authorizes or encourages seriously

discriminatory enforcement”).

In this regard, we add to Wayerski’s reasoning the fact that § 2252A(g)’s

plain language 1) does not legislate new offenses, but instead relies on established

offenses as predicates; and 2) facially limits almost entirely those predicates to

offenses involving a minor, with only two of the specified sections not being so

delimited: § 1591 and chapter 110. See 18 U.S.C. § 2252A(g)(2).

18

Nonetheless, both § 1591 and chapter 110 also criminalize sexual offenses

against children. Section 1591 is entitled “Sex trafficking of children or by force,

fraud, or coercion.” 18 U.S.C. § 1591. By its terms, it prohibits anyone from:

recruit[ing], entic[ing], harbor[ing], transport[ing], provid[ing], obtain[ing],

or maintain[ing] by any means a person . . . [for the purpose of causing] the

person to engage in a commercial sex act, or that the person has not attained

the age of 18 years and will be caused to engage in a commercial sex act . . .

.

Id. § 1591(a)(1)–(2) (emphasis added). Likewise, chapter 110 is entitled “Sexual

Exploitation and Other Abuses of Children,” and criminalizes activity relating to

the “selling or buying of children,” 18 U.S.C. § 2251A, sexual exploitation of

minors, id. § 2252, and other similar offenses. See, e.g., id. §§ 2251, 2260. Thus,

the main thrust of both § 1591 and chapter 110 is to prevent harm to minors. Cf.

Grayned v. City of Rockford, 408 U.S. 104, 110–11 (1972) (holding antinoise

ordinance in question was not impermissibly vague where “it is clear what the

ordinance as a whole prohibits . . .”).

We recognize that defendants posit certain hypotheticals that they argue

demonstrate the vagueness of the CEE statute. So, for instance, § 2252B(a) within

chapter 110 prescribes a criminal offense punishable by up to two years in prison

for using a misleading domain name with the intent to deceive a person into

19

viewing obscenity. Section 2252B(a) does not require that either the person

deceived or the material viewed must involve a minor. Id. Assuming there were

three such offenses otherwise meeting the requirements of § 2252A(g), an

individual could be prosecuted for engaging in a CEE, regardless of whether any

minors were involved in any of the three predicate offenses. To the defendants,

this statutory uncertainty “fails to provide a person of ordinary intelligence fair

notice of what is prohibited, or is so standardless that it authorizes or encourages

seriously discriminatory enforcement.” We disagree.

Even if there may be some instances in which certain crimes could be swept

into a CEE violation, the only predicates under the CEE statute are nonetheless

criminal statutes found elsewhere in the United States Code and there can be no

doubt that the CEE statute properly notifies average citizens of what is prohibited,

and limits any arbitrary enforcement. Accordingly, the defendants’ purportedly

absurd constructions of § 2252A(g) do not require us to invalidate the statute

wholesale. Wayerski, 624 F.3d at 1349 (“[S]peculation about possible vagueness

in hypothetical situations not before the Court will not support a facial attack on a

statute when it is surely valid in the vast majority of its intended applications.”)

(quotation marks and citation omitted).

20

IV.

Next, some of the defendants, whom we identify below with specificity,

challenge the sufficiency of the Superseding Indictment in regards to two counts:

Count One, which charged a violation of the CEE statute under 18 U.S.C.

§ 2252A(g); and Count Forty, which charged statutory obstruction of justice under

18 U.S.C. § 1512(c).

When analyzing such challenges, we “give the indictment a common sense

construction, and its validity is to be determined by practical, not technical,

considerations.” United States v. Poirier, 321 F.3d 1024, 1029 (11th Cir. 2003)

(quotation marks and citations omitted). Such a common sense construction is

satisfied through consideration of three factors: whether the indictment “1)

presents the essential elements of the charged offense, 2) notifies the accused of

the charges to be defended against, and 3) enables the accused to rely upon a

judgment under the indictment as a bar against double jeopardy for any subsequent

prosecution for the same offense.” United States v. Woodruff, 296 F.3d 1041,

1046 (11th Cir. 2002) (quotation marks and citations omitted). These factors

ensure the provision of constitutional notice and due process. United States v.

Fern, 155 F.3d 1318, 1325 (11th Cir. 1998); see also United States v. Yonn, 702

21

F.2d 1341, 1348 (11th Cir. 1983) (“To pass constitutional muster, an indictment

must be sufficiently specific to inform the defendant of the charge against him and

to enable him to plead double jeopardy in any future prosecutions for the same

offense.”). Ultimately, “the appropriate test . . . is not whether the indictment

might have been drafted with more clarity, but whether it conforms to minimal

constitutional standards.” United States v. Varkonyi, 645 F.2d 453, 456 (5th Cir.

1981).21 However, “[e]ven when an indictment tracks the language of the statute, it

must be accompanied with such a statement of the facts and circumstances as will

inform the accused of the specific offense, coming under the general description,

with which he is charged.” United States v. Schmitz, 634 F.3d 1247, 1261 (11th

Cir. 2011) (quotation marks and citations omitted).

A.

After unsuccessfully challenging the sufficiency of the Superseding

Indictment as to Count One prior to trial, Castleman, Lakey, Mumpower, Lambert,

and McGarity again argue that Count One is insufficient as a matter of law for two

reasons: 1) it fails to allege that the defendants acted “in concert with three or

21

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), we

adopted as binding all Fifth Circuit precedent prior to October 1, 1981. Varkonyi

was decided on May 20, 1981, and is therefore binding.

22

more persons”; and 2) it is “hopelessly vague” and “provide[s] no detail”

regarding the three predicate offenses under § 2252A(g).

Count One of the Superseding Indictment alleges as follows:

[O]n or about August 31, 2006, through the date of the return of this

superseding indictment, in the Northern District of Florida and

elsewhere, the defendants . . . did knowingly and willfully engage in a

child exploitation enterprise, that is, the advertisement, transportation

and shipment of child pornography, as defined in Title 18, United

States Code, Section 2256(8)(A), in interstate and foreign commerce

by means of a computer, as a series of three or more separate

incidents and involving more than one victim, in violation of Title 18,

United States Code, Section 2252A(g).

We examined this same indictment in Wayerski and concluded that Count

One “was plainly sufficient” because it “provided a general description of the facts

and predicate offenses” relevant to the CEE charge, specifically, that the

defendants advertised, transported, and shipped child pornography. Wayerski, 624

F.3d at 1350. In addition, we found this indictment sufficient as to Count One

because it “tracked the language of the statute on which it was based, i.e.

§ 2252A(g), and provided notice to the defendants of the charges to be defended.”

Id.; see United States v. Fern, 155 F.3d 1318, 1325 (11th Cir. 1998) (“If an

indictment specifically refers to the statute on which the charge was based, the

reference to the statutory language adequately informs the defendant of the

23

charge.”). We are bound by our precedent in Wayerski and therefore hold that

Count One of the indictment sufficiently alleged a violation of § 2252A(g).

Even were we not bound by our decision in Wayerski, we would reach the

same conclusion. The defendants’ arguments that the indictment did not

sufficiently allege a CEE offense are unavailing. In support of their challenge, the

defendants cite United States v. Gayle for the contention that a conviction will be

overturned where “the indictment upon which it is based does not set forth the

essential elements of the offense.” 967 F.2d 483, 485 (11th Cir. 1992) (en banc)

(citation omitted). But Gayle did not require that an indictment specify each

element of an offense with particularity. Rather, Gayle evidences our refusal to

require such specificity in certain contexts. In Gayle, two men were arrested for

impersonating a federal officer and acting as such, in violation of 18 U.S.C. § 912.

After conviction, they appealed, contending that the underlying indictment was

insufficient because 1) it “failed to allege that the defendants acted with an ‘intent

to defraud’ and consequently did not set forth an essential element of the offense”;

and 2) it “fail[ed] to allege that defendants engaged in overt acts beyond the mere

impersonation of a federal officer.” Id. at 485, 487. Sitting en banc, we rejected

both bases for appeal, holding that the indictment in question sufficiently alleged

24

the relevant elements of a § 912 violation. The linchpin of our holding was that the

indictment provided sufficient notice of the allegations against the Gayle

defendants.

Here, Count One satisfies that same requirement. It alleges knowing and

willful involvement in a child exploitation enterprise, which § 2252A(g)(2)

defines as a violation of certain sections and chapters of the United States Code,

“as a part of a series of felony violations constituting three or more separate

incidents and involving more than one victim.” Id. The fact that Count One does

not specifically state that the defendants acted “in concert with three or more

persons” does not render the indictment insufficient; the indictment’s explicit

reference to § 2252A(g) put the defendants on notice as to all of the elements of

the CEE offense, including the “in concert” requirement. See Poirier, 321 F.3d at

1029 (“Minor deficiencies that do not prejudice the defendant will not prompt this

Court to reverse a conviction.”) (citation omitted). Given that the sufficiency of a

charge must be given “a common sense construction,” id., we have no difficulty

here finding Count One sufficient as charged. Just as in Gayle, where an “intent to

defraud” was presumed from a charge for impersonation of a federal officer, so,

25

too, is acting “in concert with three or more persons” presumed from a charge of

engaging in a child exploitation enterprise that explicitly refers to § 2252A(g).

As to the defendants’ contention that each predicate offense for a child

exploitation enterprise must be pled with specificity in an indictment, we note that

we have previously rejected such a claim in a similar context. See United States v.

Alvarez-Moreno, 874 F.2d 1402, 1408-11 (11th Cir. 1989) (holding predicate

offenses for a continuing criminal enterprise prosecution need not be charged in an

indictment); United States v. Valencia-Trujillo, 573 F.3d 1171, 1181 (11th Cir.

2009) (approving Alvarez-Moreno).22

In Alvarez-Moreno, we considered whether uncharged criminal offenses

could serve as predicate offenses for a prosecution under 21 U.S.C. § 848, which

prohibits engaging in a continuing criminal enterprise (“CCE”). There, the

question arose in the context of a massive drug conspiracy that involved a

Colombian defendant, Carlos Alvarez-Moreno, who was extradited to the United

States. At trial, Alvarez-Moreno was convicted of, among other crimes, engaging

22

Nor are we alone in that finding. See, e.g., United States v. Young, 745

F.2d 733, 747 (2d Cir. 1984); United States v. Markowski, 772 F.2d 358, 361-62

(7th Cir. 1985); United States v. Becton, 751 F.2d 250, 256 (8th Cir. 1984) (same);

United States v. Sterling, 742 F.2d 521, 526 (9th Cir. 1984) (same).

26

in a CCE within the meaning of 21 U.S.C. § 848. Id. at 1407. On appeal, Alvarez-

Moreno argued that each predicate violation for a CCE offense should have been

charged in the indictment.

Reviewing relevant, contemporaneous case law, we rejected that contention

and held that predicate offenses “need not be charged or even set forth as predicate

acts in the indictment.” Id. at 1408 (citation omitted). Instead, “[t]he law only

requires evidence that the defendant committed three substantive offenses to

provide the predicate for a section 848 violation, regardless of whether such

offenses were charged in counts of the indictment . . . .” Id. at 1408-09.

We see no reason to vary from this holding for a conviction under 18 U.S.C.

§ 2252A(g), which the parties (and at least one of our sister circuits) agree should

be interpreted similarly to § 848. See United States v. Daniels, 653 F.3d 399, 412

(6th Cir. 2011) (“Given the similar language [in the two statutes] we believe that

interpretations of § 848 should guide our interpretation of § 2252A(g).”).

Accordingly, we hold that, in a CEE indictment, predicate offenses under 18

U.S.C. § 2252A(g) need not be identified with specificity. We therefore reject the

defendants’ challenges to the sufficiency of Count One as charged in the

Superseding Indictment.

27

B.

All of the defendants also challenge the sufficiency of the Superseding

Indictment with regard to Count Forty,23 which charged them with statutory

obstruction of justice, in violation of 18 U.S.C. § 1512(c). Prior to trial, they

moved for dismissal on the same basis, which was denied. Citing a ruling by the

First Circuit in United States v. Murphy, 762 F.2d 1151 (1st Cir. 1985), the

defendants allege error. They contend that an indictment charging a defendant

with statutory obstruction of justice under § 1512(c) must identify which official

23

All the defendants but White raised the issue in their briefs, or adopted the

arguments of their co-defendants in this regard. While White’s failure to do the

same could be construed as an abandonment of the claim, United States v.

Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (finding defendant had

abandoned basis for appeal when he failed to raise the issue), we find no such

abandonment here. See United States v. Gray, 626 F.2d 494, 497 (5th Cir. 1980).

In Gray, the former Fifth Circuit held:

On appeal, only Wright followed Fed.R.App.P. 28(I) and adopted his

codefendants' arguments by reference in his brief. The other

defendants waited until oral argument to adopt their codefendants'

contentions. Ordinarily we would limit each defendant's appeal to the

issues raised in his brief. However, we have discretion to suspend the

Federal Rules of Appellate Procedure “for good cause shown,”

Fed.R.App.P. 2. Believing it anomalous to reverse some convictions

and not others when all defendants suffer from the same error, we

consider the arguments to be adopted . . . . This adoption does not

prejudice the government which had the opportunity to fully brief all

issues in response to the various contentions of the defendants.

28

proceeding was obstructed and otherwise provide sufficient notice to the

defendant of the factual predicate for the charge. Given the nature of the charge

against the defendants, we must agree.

First, we consider the relevant language within the Superseding Indictment.

In relevant part, Count Forty alleges as follows:

That between on or about October 1, 2005, through the date of the

return of this [S]uperseding [I]ndictment, in the Northern District of

Florida and elsewhere, the defendants . . . did corruptly obstruct,

influence and impede and attempt to corruptly obstruct, influence and

impede the due administration of justice in an official proceeding, in

violation of Title 18, United States Code, Section 1512(c)(2).

By its terms, Count Forty tracks the relevant portions of § 1512(c).24 Nonetheless,

the defendants rely upon Murphy in arguing that some factual notice is required in

charging obstruction of justice under the statute.

24

18 U.S.C. 1512(c) provides that

Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or

other object, or attempts to do so, with the intent to impair the

object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official

proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20

years, or both.

29

In Murphy, the First Circuit considered whether an indictment must specify

which official proceedings were allegedly obstructed by a defendant. There, a man

named Richard Watson was a drug informant for local, state, and federal law

enforcement agencies. 762 F.2d at 1152. In the course of his role as an informant,

Watson introduced many people to an undercover state police officer, as well as

purchased cocaine in his informant capacity from a man named Haythem Dawlett.

Dawlett was subsequently arrested on federal charges of distributing cocaine.

Separately, several other individuals acquainted with Watson—Patrick Murphy,

Kevin Deyo, and Steven Quinlivan—were also the subject of another DEA

investigation being conducted in the same locale. Id. Those individuals were

eventually charged and indicted. They appeared at the Springfield federal

courthouse for their arraignment at 10 a.m. on the day in question. Unfortunately,

that same day Watson also had a meeting around the same time at the Springfield

federal courthouse, where he was supposed to meet with his DEA handler. As he

approached the courthouse, Watson spotted Murphy, Deyo, and Quinlivan exiting.

Watson, believing they had identified him, turned and headed back in the direction

from whence he had come. He testified that Murphy, Deyo, and Quinlivan

followed him and threatened bodily harm, presumably because of his role as an

30

informant. Id. at 1153. The Government subsequently filed a one-count indictment

against Murphy, Deyo, and Quinlivan for violation of 18 U.S.C. § 1512(c). In its

indictment, the Government “parroted the statute” and identified only the date the

offense occurred, without identifying which official proceeding the defendants

obstructed. The defendants were found guilty.

Reversing the conviction, the First Circuit stated as follows:

The indictment in the instant case did not identify any proceeding in

which defendants were allegedly attempting to influence Watson's

testimony. It is wholly unclear from the indictment whether the grand

jury was charging that defendants tried to influence Watson's

testimony in the proceeding against Dawlett, or in the proceeding

against them, or in some other proceeding altogether. Crucial to

preparation of any defense to a charge under the statute is at least

some indication of the identity of the proceeding in which the

defendant tried to influence testimony. The indictment at issue here

presented no such indication . . . .

Id. at 1154 (emphasis in original). Therefore, finding that “the indictment was

defective because it did not adequately apprise the defendants of the charges

against them,” the First Circuit vacated the conviction and remanded with

instructions to dismiss the underlying indictment. Id. at 1155.

In the instant case, the Government concedes that Count Forty does not

specify which official proceeding was obstructed. It argues such vagueness is

31

necessary, however, because of the nature of the defendants’ obstruction, which

sought to impede “any possible proceeding that might exist.” It further urges that

we have upheld similar charges in other indictments. See United States v. Bascaro,

742 F.2d 1335, 1348-49 (11th Cir. 1984) (upholding indictment that charged

criminal conduct by specifying defendants involved and relevant time span, among

other factors), abrogated on other grounds by United States v. Lewis, 492 F.3d

1219 (11th Cir. 2007); Ndiaye, 434 F.3d at 1299.25

Without addressing either Bascaro or Ndiaye, both of which are

distinguishable, we note that the Government has not cited any Eleventh Circuit

law—nor have we found any upon independent review—that would permit an

indictment charging a violation of § 1512(c) under these circumstances. Although

Murphy is of course not binding on us, we similarly recognize that an indictment

must “sufficiently apprise [] the defendant[s] of what [charges they] must be

prepared to meet.” Murphy, 762 F.2d at 1154 (alterations in original) (quoting

25

We note that we have refined our reasoning since Bascaro. See, e.g.,

United States v. Bobo, 344 F.3d 1076, 1083 (11th Cir. 2003) (Even when an

indictment “tracks the language of the statute, ‘it must be accompanied with such a

statement of the facts and circumstances as will inform the accused of the specific

offense, coming under the general description, with which he is charged.’”) (citing

Russell v. United States, 369 U.S. 749, 765 (1962)); Schmitz, 634 F.3d at 1261

(same).

32

Russell, 369 U.S. at 763). Even under a “common sense construction” of an

indictment charge, Poirier, 321 F.3d at 1029, the only notice provided here is that

the defendants obstructed an unknown official proceeding at some time in some

place by some action.

This lack of notice does not satisfy Woodruff. Although Count Forty tracks

the statutory language of § 1512(c) and therefore satisfies the first consideration,

it wholly fails to satisfy either the second or third Woodruff factor. Without some

factual predicate anchoring Count Forty’s charge, the Superseding Indictment

provides insufficient constitutional notice, both as to what charges must be

defended against and as to the possibility of future prosecutions on the same basis.

Without some indication of either, the Superseding Indictment cannot be said to

“notif[y] the accused of the charges to be defended against.” Woodruff, 296 F.3d

at 1046.

Although we will not upset a conviction for “minor deficiencies,” Poirier,

321 F.3d at 1029 (quotation marks omitted), these deficiencies cannot be

considered minor. As a result, we must vacate all of the defendants’ convictions

thereunder.

V.

33

Certain defendants also allege error regarding certain rulings both prior to

trial and during trial. We consider these alleged errors in turn.

A.

First, McGarity, Castleman, Lakey, Lambert, Freeman, and Mumpower

contend that the district court erred in permitting Warren Weber, a co-defendant,

to testify regarding their failure to proclaim their innocence while incarcerated

together following their arrests.26 At trial, the jury heard the following inquiry of

Weber by the prosecutor:

Prosecutor: Please tell the ladies and gentlemen of the jury

which one of these defendants, when charged with

a child exploitation enterprise, while locked up,

said, “Oh my God, it’s not me I didn’t do any of

this. . . .” Which ones denied it?

Weber: No one actually ever said that they were innocent.

We never discussed that, no.

Prosecutor: No one stood up and said, I didn’t do this?

Weber: No, sir.27

26

Weber was a cooperating defendant and, in addition to co-defendant

Ruble Keys, testified regarding the child pornography ring’s efforts at avoiding

detection by law enforcement.

27

For the sake of continuity in conveying Weber’s testimony, we have

omitted the objections interspersed therein.

34

Contending that the prosecutor’s inquiry improperly solicited comment on the

defendants’ right to remain silent, the defendants objected during and after the

Government’s inquiry. The objections were overruled. After the Government

rested, the defendants moved for a mistrial on the same basis. The district court

denied the motion with the statement that the defense can “tell them in [their]

argument.” Now, the defendants again allege error.

A prosecutor impermissibly comments on a defendant's right to remain

silent where: “(1) the statement was manifestly intended to be a comment on the

defendant's failure to testify; or (2) the statement was of such a character that a

jury would naturally and necessarily take it to be a comment on the failure of the

accused to testify.” United States v. Knowles, 66 F.3d 1146, 1162-63 (11th Cir.

1995) (quotation marks and citation omitted) (emphasis in original). “[T]he

question is not whether the jury possibly or even probably would review the

remark in this manner, but whether the jury necessarily would have done so.”

United States v. Swindall, 971 F.2d 1531, 1552 (11th Cir. 1992) (quotation marks

and citation omitted) (emphasis in original).

Although the Government concedes that “elicit[ing] testimony or argu[ing]

to the jury that a defendant’s decision not to testify is evidence of his guilt” is

35

improper, citing Griffin v. California, 380 U.S. 609, 609-15 (1965), here it argues

that the context of the comment made it innocuous and that there was an equally

plausible explanation for the remark. United States v. Calderon, 127 F.3d 1314,

1338 (11th Cir. 1997). In the Government’s view, Weber’s earlier testimony had

touched upon the child pornography ring’s operations and attempts at avoiding

law enforcement. On cross-examination, the defense elicited testimony that Weber

“only knew other group members by their nicknames and did not personally know

other group members.” So, the Government’s argument goes, the testimony in

question was not elicited to comment on the defendants’ refusal to testify or

decision to remain silent, but rather to demonstrate membership within the child

pornography group.

Although Weber’s testimony related to the defendants’ failure to proclaim

their innocence outside of court rather than commenting on their failure to

testify,28 we nonetheless find the Government’s explanation troubling. Even with

28

The Government cites case law holding that the Fifth Amendment right to

remain silent is not implicated in the context of inculpatory statements made by

defendants to co-defendants or cellmates. See, e.g., Illinois v. Perkins, 496 U.S.

292, 296-97 (1990) (“Conversations between suspects and undercover do not

implicate the concerns underlying Miranda.”); United States v. Stubbs, 944 F.2d

828, 832 (11th Cir. 1991) (“Miranda and Fifth Amendment concerns are not

implicated when a defendant misplaces her trust in a cellmate who then relays the

36

the additional context in which the Government places Weber’s testimony, it is

unclear how such testimony could have supported an inference of group

membership. Instead, the relevant portion of Weber’s testimony was pertinent only

to the defendants’ failure to protest their innocence in jail. The inescapable

conclusion is therefore that the prosecutor’s line of questioning was intended to

elicit exactly the information that it did.

However, we need not resolve this issue because any such error did not

constitute prejudicial harm. Where error can be remedied by subsequent

instruction by the trial court or mitigated by the overwhelming weight of the

evidence, it may be considered harmless so long as it does not affect the

“substantial rights of the parties.” See United States v. Dulcio, 441 F.3d 1269,

1275 (11th Cir. 2006) (quoting United States v. Cameron, 907 F.2d 1051, 1059

(11th Cir. 1990) (holding that “error in the admission or exclusion of evidence is

harmless if it does not affect the substantial rights of the parties”)). This principle

applies here. Any error in admitting Weber’s testimony was overridden by both

information—whether voluntarily or by prearrangement—to law enforcement

officials.”). The defendants argue that those circumstances are materially different

from these, where the testimony did not concern any affirmative, inculpatory

statements made by defendants, but rather permitted inference of guilt on the basis

of the defendants’ silence to a cellmate.

37

the overwhelming evidence of the defendants’ guilt, and by the court’s subsequent

jury instructions. See United States v. Turner, 871 F.2d 1574, 1582 (11th Cir.

1989) (detailing factors to be considered in assessing existence of harmless error).

As to the former, the Government produced overwhelming evidence of the

defendants’ guilt. Numerous witnesses, including Constable Power and various

FBI special agents, testified regarding the types of child pornography shared

amongst the defendants over the course of the investigation. Most newsgroup

posts—both text and binary—were saved by Constable Power to his hard drive,

processed by the FBI, and admitted into evidence at trial. The binary posts

admitted into evidence contained thousands of images and videos of abhorrent

child pornography, posted on request and cavalierly bandied back and forth

between the defendants. Similarly, the text posts demonstrated not only knowledge

of the nature of the videos and images being shared, but also an utter disregard for

the health or welfare of the children being abused and exploited in the

pornography being shared.

The Government also introduced supporting records, which traced the

ownership and control of the NSP accounts used to access the newsgroups utilized

by the far-flung child pornography ring. Payment records, credit card invoices, IP

38

addresses, proof of service by the respective internet providers, computer drives,

and other hard evidence found at each defendant’s residence all confirmed the

defendants’ involvement. Moreover, PGP encryption keys, nickname spreadsheets

detailing the various nicknames used by each group member in each newsgroup,

and the like literally littered the defendants’ homes. On top of that evidence, all

but one defendant confessed to his involvement, informing law enforcement of his

respective screennames, the types of pornography in which he traded, and the

lengths to which the ring members went to avoid detection. Given such

voluminous evidence of guilt and combined with the defendants’ own admissions,

the Government’s solicitation of Weber’s testimony must be considered harmless.

See, e.g., United States v. Cano, 289 F.3d 1354, 1360-64 (11th Cir. 2002)

(concluding admission of testimony was harmless error because of other

overwhelming evidence of guilt).

The district judge’s instructions also militate against finding prejudicial

error here. He instructed the jurors to consider the totality of the evidence and, if

appropriate, to base their findings of the defendants’ guilt upon “proof of such a

convincing character that [the jurors] would be willing to rely and act upon it

without hesitation in the most important of your affairs.” More pointedly, he

39

emphasized that the testimony of such witnesses as Weber “must be considered

with more caution than the testimony of other witnesses.” The district judge’s

instruction regarding the caution with which Weber’s testimony must be treated

was further strengthened by another warning that any testimony regarding

“statements or admissions to someone after being arrested or detained . . . [must be

considered] with caution and great care.” In addition, the district court expressly

instructed the jury that the defendants’ failure to testify could not be used as

evidence of guilt. The cumulative effect of these instructions was to limit the

impact of testimony such as Weber’s upon the jury’s findings.

Accordingly, both on the basis of the overwhelming evidence of the

defendants’ guilt and the district court’s jury instructions, any alleged error

resulting from the prosecutor’s improper solicitation of testimony was harmless.

B.

Next, McGarity contends that a typed statement he had made prior to trial

was improperly admitted at trial. He had provided the typed statement on or about

February 28, 2008, when law enforcement agents arrived at his house with a

search warrant. In the statement, McGarity detailed his sexual attraction to

children between ages two and five, his failures in resisting those attractions, and

40

his prior fondling, touching, and molestation of his two-year-old daughter some

nine years earlier (although he also said that he had “never once . . . penetrate[d]

her, hurt her or demean[ed] her in any way whatsoever . . . .”). When the

Government sought to admit his statement and publish it to the jury, McGarity

objected that it was inadmissible pursuant to Federal Rules of Evidence 403 and

404(b) because of the “overwhelming evidence of guilt.” The district court

overruled that objection, but nonetheless issued a limiting jury instruction. Now,

McGarity alleges error in the admission of his statement.29

McGarity relies upon a former Fifth Circuit case, United States v. San

Martin, 505 F.2d 918 (5th Cir. 1974), which he contends set the threshold

requirements for admission of prior criminal acts. In San Martin, the Fifth Circuit

29

It must be noted that McGarity argues, as he did at trial, that such

evidence should not be admitted “given the volume and character of the evidence

[otherwise] admitted,” rather than disputing the underlying relevance. Thus, this

Court need only decide whether the district court balanced the necessary factors

under Rule 404(b).

FBI Agent Rex Miller read to the jury McGarity’s written confession. The

district court did not err in admitting evidence of over 50,000 digital images and

videos of child pornography seized from McGarity’s residence. McGarity did not

object at trial and has not shown plain error on appeal. This 404(b) evidence

showed that McGarity, due to his possession of a large quantity of child

pornography, intended to acquire and distribute child pornography with his co-

defendants.

41

considered whether evidence of prior criminal acts for resisting or opposing a

police officer could be used at trial for a similar crime. In disallowing the evidence

at issue, the court noted several prerequisites to the admission of any such

evidence:

1. Proof of the prior similar offenses must be “plain, clear and

convincing”;

2. The offenses must not be too remote in time to the alleged

crime;

3. The element of the prior crime for which there is a recognized

exception to the general rule, such as intent, must be a material

issue in the instant case; [and]

4. There must be a substantial need for the probative value of the

evidence provided for by the prior crimes.

Id. at 921-22. Here, McGarity argues that neither the third nor fourth prongs of the

San Martin test were met.

While we recognize the factors laid out by the San Martin court, we find

that those factors are now largely subsumed within a trial court’s inquiry under the

Federal Rules of Evidence. So, for instance, the Rules generally prohibit the

admission of propensity evidence. See Fed.R.Evid. 404(b) (“Evidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person in

order to show action in conformity therewith.”). Nonetheless, they provide a

42

specific exception for “child molestation” cases. Specifically, Federal Rule of

Evidence 414(a) provides:

In a criminal case in which the defendant is accused of an offense of

child molestation, evidence of the defendant’s commission of another

offense or offenses of child molestation is admissible, and may be

considered for its bearing on any matter to which it is relevant.30

The phrase “offense of child molestation” includes “any conduct proscribed by

chapter 110 of title 118, United States Code.” Fed.R.Evid. 414(d)(2). Advertising,

transporting, and receiving visual depictions of child pornography, in violation of

18 U.S.C. § 2252(a)(4)(B), and receiving visual depictions of child pornography,

in violation of 18 U.S.C. §§ 2251(d), 2252A(a)(1) and 2252A(a)(2), are offenses

within chapter 110 of title 18.31 It thus follows that McGarity’s written confession

could be properly admitted against him, so long as its admission satisfied other

relevant Rules of Evidence.32 Our primary concern is therefore whether the

30

We note that Federal Rule of Evidence 414 was amended effective

December 1, 2011. However, the amendment does not change the result of this

inquiry, even if it were considered retroactive. Accordingly, we herein quote the

pre-amendment language of Rule 414.

31

Specifically, McGarity was convicted of child pornography offenses in

Count Ten (advertising), Count Twenty-One (transporting), and Count Thirty-

Three (receiving).

32

Although we have not previously determined, in a published decision,

whether such evidence must satisfy Rule 403, other circuits have so held. See, e.g.,

43

admission of McGarity’s written confession was proper under Rule 403. We find

that it was.

Rule 403 provides that “evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time,

or needless presentation of cumulative evidence.” Fed.R.Evid. 403. To make such

a determination, the context of both the evidence and its admission must be

considered. United States v. Lopez, 649 F.3d 1222, 1247-48 (11th Cir. 2011)

(considering context of admission of evidence under Rule 403 inquiry)

A review of the factual and procedural context at trial supports the district

court’s decision to admit the written statement, as it provided necessary context to

the plethora of evidence introduced against McGarity by the Government. The

weight of the evidence introduced against McGarity was substantial. For example,

the Government presented the jury evidence of McGarity’s screennames, which

United States v. Kelly, 510 F.3d 433, 437 n.3 (4th Cir. 2007) (affirming

applicability of Rule 403, and noting other circuit holdings); United States v.

Hawpetoss, 478 F.3d 820, 824 (7th Cir. 2007) (same); United States v. LeMay,

260 F.3d 1018, 1026-27 (9th Cir. 2001) (same); United States v. Castillo, 140 F.3d

874, 882-83 (10th Cir. 1998) (same). We also find that evidence admitted under

Rule 414(a) must satisfy Rule 403.

44

he used in posting over 800 messages to the pornography ring,33 as well his NSP

identification, his NSP address, and his payment information for those services.

Nonetheless, the nature of McGarity’s crime was intended to avoid detection. It

took a lengthy and expensive investigation to understand and to trace the type of

activity in which McGarity participated. In such a context, we will not find

improper the district court’s admission of McGarity’s written confession, where it

could have been used not only to make the Government’s case “believable but also

understandable.” Lopez, 649 F.3d at 1248. The fact that the district court

considered McGarity’s objections contemporaneously during a sidebar—as well as

offering a limiting instruction to the jury—only further supports the court’s

decision to admit the written statement. As such, the admission of McGarity’s

written statement was not error.34

C.

33

McGarity only encrypted his communications to the child pornography

ring, rather than masking them through an anonymizer or remailer, which made

him easier to identify than some of his colleagues.

34

Nor, even if the admission of the written statement were error, could it

have had a “substantial influence on the outcome” of McGarity’s trial, given the

weight of the evidence against him. See United States v. Belfast, 611 F.3d 783,

816 (11th Cir. 2010); United States v. Phaknikone, 605 F.3d 1099, 1109 (11th Cir.

2010).

45

Defendants McGarity, Lakey, Lambert, White, and Mumpower also contend

that a mistrial was warranted because of three allegedly improper prosecutorial

arguments.35 We find that only one of the defendants’ challenges necessitates

discussion.

During its closing argument, the Government argued as follows:

Prosecutor: The market for it [child pornography] is sitting directly

behind me. These children would not be raped –

Defense: Objection, improper argument.

Court: Sustained.

Prosecutor: The victims in these videos and images, they’re the

children. They’re our daughters and granddaughters,

neighbors, friends. Sometimes at night when I’m sitting

in my house and everyone is asleep and even the puppy

is down, it’s awfully quiet, I can’t fall asleep, sometimes

you can hear the crying.

Defense: Objection, improper argument.

Court: Sustained.

Prosecutor: You saw it on the video. I don’t have to state it. I can’t

protect all the kids. At some point when the evidence is

there, which is overwhelmingly here, there needs to be a

verdict as to the Defendants who amass all this stuff,

35

As noted above, we find the defendants’ first two arguments in this regard

to be without merit and not warranting discussion. See supra note 6.

46

who work together to get all this stuff, who write over

and over again how much they enjoy all this stuff, how

these kids being penetrated arouse them and they like it.

The evidence is overwhelming. It’s not complex. It’s

good old fashioned police work. Please return a verdict

of guilt on all counts.

Notwithstanding that their objections were sustained, the defendants contend a

curative instruction was required36 but not issued.37

As noted above in Section V(A), supra, when we review an issue of

prosecutorial misconduct, we must determine (1) whether the challenged

comments were improper and (2) if so, whether they prejudiced the defendant's

substantial rights. United States v. Paul, 175 F.3d 906, 909 (11th Cir. 1999). “A

defendant's substantial rights are prejudicially affected when a reasonable

36

See, e.g., United States v. Wilson, 149 F.3d 1298, 1302 (11th Cir. 1998)

(overlooking improper prosecutorial comment in part because of curative

instructions by the trial court); United States v. Rodriguez, 765 F.2d 1546, 1560

(11th Cir. 1985) (holding issuance of three curative instructions was sufficient to

cure damage arising from prejudicial comments made by prosecutor).

37

Although a curative instruction was not given at the time the district court

sustained the objection, the district court did instruct the jury at the start of the trial

that “statements, arguments and questions by the attorneys are not evidence”;

before closing arguments that “what attorneys say in their closing argument is not

evidence”; and in the closing instruction that the jury “must consider only the

evidence that has been admitted in the case,” “anything the attorneys said is not

evidence in this case,” and “[w]hat the attorneys say is not binding upon you.”

47

probability arises that, but for the remarks, the outcome of the trial would have

been different.” United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006); see

also United States v. Bailey, 123 F.3d 1381, 1400 n.25 (11th Cir. 1997) (“For a

prosecutor’s closing argument to violate due process, the remarks must be

improper and a reasonable probability must exist that, but for the offending

remarks, the defendant would not have been convicted.”) (quotation marks and

citation omitted).We find that the first prong of our inquiry is satisfied, but that the

second is not.

As to the first prong, by telling the jury that the victims of the child

pornography are “our daughters and granddaughters, neighbors, friends,” the

prosecutor here crossed the line between “demarcating permissible oratorical

flourish from impermissible comment.” United States v. Kopituk, 690 F.2d 1289,

1342 (11th Cir. 1982). Here there is no doubt of the impropriety of the emotional

appeal to the jurors to recognize that the victims depicted in the thousands of

images and videos were the jurors’ own “daughters and granddaughters” and that

“you can hear the crying.”38

38

Cf. Grossman v. McDonough, 466 F.3d 1325, 1348 (11th Cir. 2006)

(holding that, in habeas case discussing Golden Rule under Florida law, describing

the circumstances of death and the physical pain and emotional terror of victim is

48

Nonetheless, the improper argument did not so prejudicially affect the

defendants’ rights that a different outcome might have been achieved in its

absence. In determining the level of prejudice stemming from a prosecutor’s

comment, we examine that comment in the context of the entire trial and in light of

any curative instruction. Wilson, 149 F.3d at 1301; see also United States v.

Hernandez, 145 F.3d 1433, 1438 (11th Cir. 1998).

As listed above, the district court sustained objections to the offending

prosecutorial statements and thrice provided curative instructions admonishing

that the jury “must consider only the evidence that has been admitted in the case,”

“anything the attorneys said is not evidence in the case,” and “[w]hat the attorneys

say is not binding upon you.” See Bailey, 123 F.3d at 1402 (“[A]ny possible

prejudice to Bailey resulting from the prosecutor’s closing argument was cured by

not a Golden Rule violation but is nonetheless plainly relevant to whether murder

was heinous, atrocious, or cruel); Kopituk, 690 F.2d at 1342-43 (rejecting

defendant’s claim that prosecutor suggested jury had a personal stake in the

outcome when prosecutor argued the jurors were “citizens of the community” and

by their verdict should say “enough is enough,” “help clean up Dodge Island,” and

“rid the ports” of certain people). “Appeals to the jury to act as the conscience of

the community . . . are not per se impermissible,” id., and do “not constitute a

direct suggestion that the jury ha[s] a personal stake in the outcome of the case.”

Id. at 1342.

49

instructions from the district judge that the lawyers’ arguments were not evidence

and that the jury was to decide the case solely on the evidence presented at trial.”).

As we have already noted, supra, the weight of the evidence against the

defendants was overwhelming. We need not delineate that evidence again. Instead,

we only reaffirm that the weight of the evidence here was so overwhelming that

the impropriety of the prosecutor’s argument could have had no bearing on the

jury’s determination. See Eckhardt, 466 F.3d at 947 (finding that prosecutorial

statements, even if improper, were not so cumulative as to demonstrate substantial

error, and also that weight of evidence would have led to conviction even in the

absence of those statements). At a minimum, the defendants have not carried their

burden to show a reasonable probability that but for the remarks, the outcome of

the trial would have been different. Therefore, we deny the defendants’ challenge

on the basis of improper prosecutorial argument.

D.

The defendants also challenge the district court’s failure to issue a

“unanimity” instruction in regard to the CEE charge of the Superseding

Indictment. All seven defendants were charged in Count One with violating the

CEE statute. In relevant part, § 2252A(g) prohibits engaging in a “child

50

exploitation enterprise . . . as a part of a series of felony violations constituting

three or more separate incidents . . . .” Id. (emphasis added). The jury subsequently

convicted each defendant. Now, the defendants contend both that 1) the district

court was required to instruct the jury that any determination of predicate acts

under § 2252A(g) had to be unanimous; and 2) that failure to administer such an

instruction constitutes substantial and prejudicial harm.

1.

In its response and at oral argument, the Government concedes that the

district court was required to give a unanimity instruction. Notwithstanding this

concession, we nonetheless analyze this requirement below because of its

relevance to subsequent discussion.

The need for a unanimity instruction arises out of § 2252A(g)’s “series”

requirement. During trial, some of the defendants requested a unanimity

instruction as to Count One of the Superseding Indictment. For example,

Freeman’s proposed jury instructions requested that each juror be instructed to

“unanimously agree about which three [or more predicate] violations the

Defendant committed.” Id. Similarly, he later proposed the following, additional

instruction:

51

Regarding the substantive counts charging a defendant with the

advertisement of child pornography, the transportation and shipment

of child pornography, and the receipt of child pornography, if there

was evidence presented showing more than one incident that could

constitute a violation of the respective statute, you must unanimously

agree on at least one specific incident that would constitute a

violation of the statute in order to find the defendant guilty.

(emphasis added). The Government’s own proposed jury instruction as to Count

One contained no such requirement for unanimity. On the recommendation of the

Government, the defendants’ proposals were rejected and the district court’s jury

instructions made no reference to unanimity. The defendants now appeal that jury

instruction, claiming that “it [is not only] impossible to conclude beyond a

reasonable doubt that the jury would have unanimously found that [they]

committed three or more specific violations, [but] it is also impossible to conclude

beyond a reasonable doubt that the jury determined [they] acted in concert with the

same three persons.”

The Supreme Court has considered this same issue in a similar context. In

Richardson v. United States, 526 U.S. 813 (1999), the Court was faced with a

district court’s refusal to issue a unanimity instruction in the context of the CCE

52

statute, 21 U.S.C. § 848, which prohibits “engag[ing] in a continuing criminal

enterprise.”39 Id. at 815. Section 848 states:

[A] person is engaged in a continuing criminal enterprise if --

(1) he violates any provision of [the federal drug laws, i.e.,] this subchapter

or subchapter II of this chapter the punishment for which is a felony, and

(2) such violation is a part of a continuing series of violations of [the federal

drug laws, i.e.] this subchapter or subchapter II of this chapter -

(A) which are undertaken by such person in concert with five or more

other persons with respect to whom such person occupies a position

of organizer [or supervisor or manager] and

(B) from which such person obtains substantial income or resources.

§ 848(c).

In Richardson, the United States prosecuted a man named Eddie Richardson

for his involvement in organized crime and related criminal activity. At trial, the

Government presented evidence that Richardson had organized a Chicago street

gang that distributed heroin, crack cocaine, and powder cocaine for a number of

years. Also, the Government’s evidence showed that Richardson had run the gang.

After the close of evidence, Richardson requested the district court instruct the

jury that they must “unanimously agree on which three acts constituted [the] series

of violations” within the meaning of § 848(c). Richardson, 526 U.S. at 816

39

We have already noted the similarity between the CCE statute and the

CEE statute. See Section IV(A), supra. Thus, the interpretation of the former can

guide the interpretation of the latter.

53

(alteration in original). The district court denied that request, instead instructing

the jury only that “they must unanimously agree that the defendant committed at

least three federal narcotic offenses,” while adding that they did not “have to agree

as to the particular three or more federal narcotics offenses committed by the

defendant.” Id. The Seventh Circuit upheld the district court’s jury instruction.

United States v. Richardson, 130 F.3d 765 (7th Cir. 1997). On review, the relevant

issue before the Richardson Court was whether each violation constituted an

element of the crime for engaging in a CCE, or instead whether predicate offenses

for a CCE violation were simply a “means” of violating the statute.

Noting that the statutory language was fairly ambiguous as to intent,

nonetheless the Supreme Court found that the plain meaning of “violation”

seemed to imply a requirement for individual proof. Id. at 818-19. Similarly, the

breadth of any activity that could be defined as a “violation” counseled in favor of

finding that Congress had intended each violation to be proven individually. Id. at

819. As a final consideration, the Court noted that its prior cases had emphasized

that “the Constitution itself limits a State’s power to define crimes in ways that

would permit juries to convict while disagreeing about means . . . .” Id. at 820

(emphasis added). See also Schad v. Arizona, 501 U.S. 624, 651 (1991) (Scalia, J.,

54

concurring) (“We would not permit . . . an indictment charging that the defendant

assaulted either X on Tuesday or Y on Wednesday . . . .”). Therefore, the Court

held that predicate offenses are elements of a CCE charge and require unanimous

accord from the jury.

When considering the factors deemed relevant by the Richardson Court, we

find those same factors require a similar finding here. First, there can be no doubt

that the language of the CEE statute indicates that each individual violation of

§ 2252A(g)(2) is an element, rather than a means. Just as in Richardson, where the

Court indicated that the terms “violates” and “violation” were “ordinarily

entrust[ed to] a jury,” Richardson, 526 U.S. at 818, § 2252A(g)(2) uses the same

diction in criminalizing a child exploitation enterprise. Therefore, “hold[ing] that

each ‘violation’ here amounts to a separate element is consistent with a tradition of

requiring juror unanimity where the issue is whether a defendant engaged in

conduct that violates the law.” Id. at 818-19.

Second, the broad range of “violations” that qualify as CEE predicate

offenses counsels in favor of considering each “violation” an element of a CEE

offense. As the Supreme Court noted in Richardson with respect to 21 U.S.C.

§ 848, “the statute’s word ‘violations’ covers many different kinds of behavior of

55

varying degrees of seriousness.” Richardson, 526 U.S. at 819. The same applies to

the CEE statute here. Section 2252A(g)(2) explicitly provides that any one of the

three predicates can arise from a violation of “section 1591, section 1201 if the

victim is a minor, or chapter 109A (involving a minor victim), 110 (except for

sections 2257 and 2257A), or 117 (involving a minor victim) . . . .” § 2252A(g)(2).

If we were to hold that each such predicate need not be agreed upon unanimously,

we would be “permitting a jury to avoid discussion of the specific factual details

of each violation, [which might] cover up wide disagreement among the jurors

about just what the defendant did, or did not, do.” Richardson, 527 U.S. at 819.

This we cannot do.

Lastly, as in Richardson, our Court has long sought to ensure equity in the

administration of jury verdicts. Where possible and to prevent unfairness, we

require juries to find unanimously in regard to any aspect of a criminal violation

that is both susceptible to proof and intrinsic to that crime. Indeed, unanimous

agreement on underlying violations is required in contexts beyond that dealt with

by the Richardson Court. See, e.g., United States v. Bradley, 644 F.3d 1213, 1300

n.147 (11th Cir. 2011) (noting proper jury instruction in money laundering

conspiracy required unanimous agreement upon “which one or more of the types

56

of money laundering offenses [the defendants] conspired to commit” (emphasis in

original)). Here, interpreting the “series of felony violations” as elements of a CEE

violation rather than means of a CEE violation comports with the fairness

underlying our criminal judicial system.

Therefore, following the Supreme Court’s lead in Richardson, we conclude

that jury members must agree unanimously as to which felony violations constitute

a predicate within the series of “three or more separate incidents.”

2.

Neither our finding nor the Government’s concession ends the inquiry. The

Government now argues that, even though such an instruction should have been

given, the failure to give it amounts to harmless error under the circumstances at

issue. See Ross v. United States, 289 F.3d 677, 683-84 (11th Cir. 2002) (holding

failure to issue a unanimity instruction was harmless error).

“When reviewing the harmlessness of an error under the [applicable

harmless error] standard, [i]f, when all is said and done, the [court's] conviction is

sure that the error did not influence, or had but very slight effect, the verdict and

the judgment should stand.” Ross, 289 F.3d at 683 (quotation marks and citations

omitted). “But if a federal court is in grave doubt about whether a trial error of

57

federal law had substantial and injurious effect or influence in determining the

jury's verdict, that error is not harmless.” Id. (quotation marks and citations

omitted).

Each of the defendants with but one exception, Ronald White, concedes that

they were convicted of at least two predicate CEE offenses. McGarity, Freeman,

Lakey, Lambert, Castleman, and Mumpower were each convicted of a substantive

count for advertising child pornography,40 as well as a substantive count for

transportation of child pornography.41 Each of those convictions constitutes a

predicate offense under § 2252A(g). See § 2252A(g)(2).42 The issue before us is

therefore whether the jury unanimously convicted these six defendants of a third

predicate offense.

40

Castleman was convicted of Count Five of the Superseding Indictment of

advertisement of child pornography, in violation of 18 U.S.C. §§ 2251(d)(1) and

(2); Freeman was convicted of Count Six; Lakey of Count Eight; Lambert of

Count Nine; McGarity of Count Ten; and Mumpower was convicted of Count

Twelve.

41

Castleman was convicted of Count Seventeen of the Superseding

Indictment of transportation of child pornography, in violation of 18 U.S.C. §§

2252A(a)(1) and (2); while Freeman was convicted of Count Eighteen; Lakey of

Count Nineteen; Lambert of Count Twenty; McGarity of Count Twenty-One; and

Mumpower of Count Twenty-Two.

42

18 U.S.C. § 1512(c) is not a predicate crime under § 2252A(g).

58

To satisfy the necessity of a third predicate upon which to base the

defendants’ convictions for engaging in a CEE under § 2252A(g), the Government

makes two arguments. First, that evidence of involvement in four to eight

instances of advertisements, transportation, and receipt of child pornography was

presented at trial as to each defendant but for Ronald White, which should permit

an inference of a third predicate within the meaning of the CEE statute. Second,

the Government argues that the defendants’ convictions for conspiracy to both

advertise and transport child pornography constitute a third predicate offense

under § 2252A(g).

The first argument in reliance upon the “four to eight substantive

advertisements and transportations” is unavailing. Although the Government

presented evidence regarding specific instances of advertisement, transportation,

and receipt of child pornography betwixt the members of the child pornography

ring, the jury never agreed unanimously on which of those instances could serve as

a predicate under the CEE statute. Indeed, those other four to eight violations were

neither charged in the Superseding Indictment nor addressed in the jury’s verdict

form. Although, as noted above, predicate offenses need not be charged with

specificity in an indictment, Alvarez-Moreno, 874 F.2d at 1410-11, they must

59

nonetheless be agreed to unanimously by a jury to obtain a conviction. Therefore,

regardless of how much evidence was offered at trial by the Government, it would

be improper to infer unanimous agreement as to a specific offense by the members

of the jury in the absence of an express finding.

However, such inference is proper where, as here, the jury convicted six of

the defendants of three counts that could serve as predicates for a CEE violation.

Sawyer v. Holder, 326 F.3d 1363, 1366 (11th Cir. 2003) (“[T]he jury’s unanimous

finding of guilt on the five substantive drug offenses ensures that the core concern

of the Richardson decision—that jurors might convict on the basis of violations

for which there was non-unanimity—is not present in this case.”).43

Notwithstanding the defendants’ initial contention to the contrary, the

inclusion of conspiracy violations within the penumbra of the CEE statute permits

43

Other circuits find harmless error in similar circumstances so long as the

jury returned unanimous guilty verdicts on three or more counts that could serve

as predicate offenses. See, e.g., United States v. Escobar-de Jesus, 187 F.3d 148,

162 (1st Cir. 1999) (finding convictions on substantive counts were sufficient to

satisfy Richardson standard); United States v. Long, 190 F.3d 471, 476 n.3 (6th

Cir. 1999) (finding harmless error in CCE prosecution where “the jury also

unanimously found [the defendant] guilty of more than three drug violations . . .”);

United States v. Smith, 223 F.3d 554, 567-68 (7th Cir. 2000) (upholding CCE

conviction on basis of five substantive convictions).

60

a conspiracy to serve as a predicate for a CEE conviction.44 The statutory language

is unambiguous: Section 2252A(g) provides that any felony violations under

“section 1591, section 1201 if the victim is a minor, or chapter 109A (involving a

minor victim), 110 (except for sections 2257 and 2257A), or 117 (involving a

minor victim)” are eligible predicates for a CEE conviction. Conspiracy is one of

the recognized offenses within those sections and chapters. See, e.g., 18 U.S.C. §

1201(c) (“If two or more persons conspire to violate this section and one or more

of such persons do any overt act to effect the object of the conspiracy, each shall

be punished by imprisonment for any term of years or for life.”). Nor is there any

legislative indication that conspiracy offenses were meant to be excluded as

predicates. Thus, a conspiracy conviction may serve as a predicate offense for a

44

We note with interest that the jury was instructed as to the unanimity

requirement with regards to the conspiracy charge under the Superseding

Indictment. After instructing the jury about the required elements of a conspiracy

charge under Count Two of the Superseding Indictment, the district court further

instructed that “in order to return a verdict of guilty [for conspiracy under Count

Two], you must unanimously agree upon which of the offenses the Defendant

conspired to commit.” Subsequently, every defendant but Ronald White was

found guilty of conspiracy as charged in Count Two. To make such a finding and

to comply with the district court’s instructions, the jury had to unanimously agree

upon which offenses served as the predicate for the conspiracy conviction.

61

CEE prosecution.45 Accord United States v. Jones, 918 F.2d 909, 910-11 (11th Cir.

1990) (affirming conspiracy may be predicate offense for CCE conviction);

Young, 745 F.2d at 748-52 (same). We therefore affirm the CEE convictions of

McGarity, Castleman, Lakey, Lambert, Freeman, and Mumpower.

However, Ronald White’s conviction must be vacated. Unlike his co-

defendants, White was convicted of only two predicate offenses: 1) Count Two,

which charged him with conspiracy to advertise, receive and possess child

pornography and to obstruct justice, in violation of 18 U.S.C. §§ 371, 2251 (d)(1),

2252(a)(1) and (2), and 1512(c)(2);46 and 2) Count Thirty-Nine, which charged

him with receipt of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and

(2). And, also unlike his co-defendants, he was neither charged with nor convicted

of advertising child pornography or transporting child pornography. Because the

45

We note that a conspiracy offense may be considered as a predicate

offense, notwithstanding that it has been vacated as a lesser-included offense for

purposes of the CEE conviction. See, e.g., United States v. Miller, 116 F.3d 641,

678 (2d Cir. 1997) (holding that conspiracy conviction vacated as lesser-included

offense of CCE conviction may still serve as a predicate offense for purposes of

that CCE conviction.)

46

As noted above, supra note 3, White was found not guilty of conspiring to

transport and ship child pornography.

62

CEE statute requires three predicate offenses, we must therefore vacate White’s

conviction for engaging in a child exploitation enterprise under Count One.

VI.

The defendants also challenge the sufficiency of the evidence in support of

some of their respective convictions. To reverse a jury verdict based on the

insufficiency of the evidence, the defendant must show that a reasonable trier of

fact could not find the defendant guilty of the offense beyond a reasonable doubt.

United States v. Vera, 701 F.2d 1349, 1356-57 (11th Cir. 1983). In evaluating

such a claim, the record is viewed in the light most favorable to the jury verdict,

drawing all reasonable inferences and resolving all questions of credibility in

favor of the Government. Id. The verdict shall be affirmed so long as a reasonable

juror could conclude that the evidence establishes guilt beyond a reasonable doubt.

See id. at 1357. It is not necessary that the evidence exclude every reasonable

hypothesis of innocence. Id. “A jury is free to choose among reasonable

constructions of the evidence.” Id. (quotation marks and citations omitted).

A.

First, Lambert challenges his conviction for knowingly transporting and

shipping, or attempting to transport and ship, child pornography in violation of 18

63

U.S.C. §§ 2252A(a)(1) and (2), claiming it should be reversed for insufficiency of

evidence. While Lambert acknowledges that he possessed, received, and

advertised child pornography, he denies that he shipped or transported such child

pornography to others. Specifically, Lambert relies upon certain testimony at trial

that indicated that law enforcement never downloaded the child pornography that

was claimed to have been posted by Lambert to other group members.

The record does not support Lambert’s argument. At trial, the Government

introduced multiple newsgroup text posts under various of Lambert’s monikers in

which he referred his colleagues to child pornography he had uploaded for their

benefit. For instance, within a two-week period in November 2006, Lambert

posted at least twice in the group being used by the child pornography ring,

informing his fellow members of images and videos he had uploaded. In the first

encrypted post, which was posted on November 15, 2006 in the public newsgroup

then used by the child pornography ring, he identified the newsgroup in which he

had posted the child pornography, the subject of his post, the file name under

which he had saved the child pornography, the fictional name under which he had

posted, and explicit instructions on how to view it. In the second encrypted post,

which was posted on November 21, 2006, he responded to an earlier post by a ring

64

member nicknamed “Peaches,” notifying the ring members of additional

pornography he was posting. Again, as he had on November 15, 2006, Lambert

identified the newsgroup in which he had posted the binary file of child

pornography, the subject name of the post, the file name under which he had saved

the child pornography, the fictional name under which he posted, and explicit

instructions on how to view it. As proof that it was Lambert who had posted both

times, the Government introduced business records of his newsgroup provider and

cable provider indicating that both posts—the one on November 15, and the one

on November 21—had been posted by Marvin Lambert from his newsgroup

account and from his IP address, both of which Lambert paid for with a credit card

in his own name. Notwithstanding this evidence, Lambert argues that there was

only “speculation that on one occasion [he] might have transmitted or sent child

pornographic images by computer.”

Lambert’s argument presumably hinges on the oversight of either the FBI or

Constable Power to capture the child pornography that Lambert had uploaded.

Such an argument necessarily fails, however, in light of Lambert’s own confession

to the FBI agents who came to his home on February 29, 2008. The agent to whom

he confessed, Special Agent Emily Ann Odom, testified at trial that Lambert was

65

read his constitutional rights, but elected to speak with her that morning at his

home. There, he confessed that he had both “uploaded and downloaded” child

pornography. That confession was never contradicted at trial. See United States v.

Andrews, 953 F.2d 1312, 1325 (11th Cir. 1992) (approving the sufficiency of

evidence underlying conviction based in part on defendant’s confession to law

enforcement). See also United States v. Aumais, 656 F.3d 147, 149 n.1 (2d Cir.

2011) (approving enhancement for trading child pornography where defendant had

previously admitted such conduct to law enforcement).

Viewing this evidence in light of the heavy burden borne by any defendant

seeking to overturn a conviction, we find Lambert cannot meet the burden. Even

in the absence of Lambert’s confession to Special Agent Odom, circumstantial

evidence established that Lambert “transported” the child pornography through

various uploads.47 Therefore, we cannot say that “no rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.”

47

Lambert’s argument is akin to the “if a tree falls in the woods, but no one

is around to hear it, does it make a sound” inquiry. Simply because the

investigating agents did not track the child pornography Lambert told his peers he

had uploaded does not mean that Lambert’s upload did not occur. A reasonable

juror was entitled to find that such evidence supported a finding beyond

reasonable doubt of transportation of child pornography, in violation of 18 U.S.C.

§§ 2252A(a)(1) and (2). See Vera, 701 F.2d at 1356-57.

66

Wright, 392 F.3d at 1273. We affirm Lambert’s conviction under Count Twenty of

the Superseding Indictment.

B.

Having found that the defendants’ convictions for Count Forty of the

Superseding Indictment must be vacated due to the insufficiency of Count Forty as

charged therein, see Section IV(B), supra, we decline to address the sufficiency of

the evidence in this regard.48

VII.

48

Without addressing in detail the evidence put forth at trial in support of

Count Forty, we note that the vagueness of the charge was rivaled by the

tenuousness of evidentiary support at trial. As the First Circuit noted in Murphy,

an indictment lacking some specificity regarding a violation of § 1512(c) results in

an “open-ended” prosecution.

Here, the prosecution relied upon a similarly open-ended and expansive

view of the requirements for a § 1512(c) offense, neither anchoring the

prosecution to any specific official proceeding nor proving knowledge on the part

of the defendants as to those official proceedings. Instead, the Government

broadly argued the necessary obstructive acts arose from the child pornography

ring’s methods of ensuring it would not be detected by law enforcement. However,

it goes without saying that any thinking criminal wants to avoid detection and

takes steps they consider appropriate to prevent it; whether it is wearing a glove to

protect against leaving fingerprints in a case involving theft, or wearing a mask to

prevent identification during a robbery. Section 1512(c) was simply not intended

to further criminalize that type of activity.

67

All of the defendants challenge as violative of the Double Jeopardy Clause

their convictions under both Count One and Count Two. They contend their

convictions are “multiple punishments for the same offense.” Illinois v. Vitale,

447 U.S. 410, 415 (1980) (quoting North Carolina v. Pearce, 395 U.S. 711, 717

(1969)). As noted above, Count One of the Superseding Indictment charged the

defendants with “knowingly and willfully engag[ing] in a child exploitation

enterprise,” in violation of 18 U.S.C. § 2252A(g), while Count Two charged them

with conspiring to commit certain acts underlying that child exploitation

enterprise. All of the defendants now before us were convicted of both counts.

We need not address this argument again, having passed on the same issue

previously in Wayerski. There, we held that

§ 2252A(g) requires proof that a defendant acted “in concert” with at

least three other persons. This conduct is an element of the child

exploitation enterprise offense that requires the same proof of an

agreement that would also violate the conspiracy offense charged in

Count 2 of the defendants’ indictment. Because the defendants’

conspiracy convictions did not require proof of facts different from

the child exploitation enterprise offense’s “in concert” requirement,

we hold that the defendants’ conspiracy convictions were lesser

included offenses and violated the Double Jeopardy Clause.

Wayerski, 624 F.3d at 1351 (citation omitted). Moreover, the Government

concedes that Count Two is a lesser-included offense of Count One.

68

Accordingly, we vacate McGarity, Freeman, Lakey, Lambert, Castleman,

and Mumpower’s conspiracy convictions under Count Two as violative of the

Double Jeopardy Clause. See, e.g., United States v. Boyd, 131 F.3d 951, 954-55

(11th Cir. 1997) (noting the “proper remedy for convictions on both greater and

lesser included offenses is to vacate the conviction and the sentence of the lesser

included offense”). However, given our decision to vacate White’s conviction

under Count One, no Double Jeopardy attaches to his Count Two conviction. Cf.

United States v. Reed, 980 F.2d 1568, 1581 (11th Cir. 1993) (affirming conviction

for conspiracy in context of Double Jeopardy appeal, although on different

grounds). Thus, we affirm White’s Count Two conviction.

VIII.

After the jury returned its guilty verdicts as to each defendant, the

defendants were sentenced individually. Upon review, we note that the terms of

the sentences, all of which ran concurrently for each individual, may be considered

in three distinct groups. The defendants now allege error collectively and

individually.

The first group, those with the heaviest sentences, includes McGarity,

Freeman, and Mumpower. Each was convicted of the following charges in the

69

Superseding Indictment: Count One, engaging in a child exploitation enterprise,

for which they received life sentences; Count Two, conspiracy to advertise,

transport/ship, receive, and possess child pornography, and to obstruct an official

proceeding, for which they received 600-month sentences; advertising child

pornography, for which they received 600-month sentences;49 transporting or

shipping child pornography, for which they received 480-month sentences;50

receiving child pornography, for which they received 480-month sentences;51 and

Count Forty, obstructing justice, for which they received 240-month sentences.

Likewise, the second group of defendants were also sentenced to the same

terms of imprisonment after conviction of the same offenses. Castleman, Lakey,

and Lambert were each convicted of the following charges from the Superseding

Indictment: Count One, engaging in a child exploitation enterprise, for which they

received life sentences; Count Two, conspiracy to advertise, transport/ship,

receive, and possess child pornography, and to obstruct an official proceeding, for

49

McGarity was convicted of Count Ten, while Freeman and Mumpower

were convicted, respectively, of Counts Six and Twelve.

50

McGarity was convicted of Count Twenty-One, while Freeman and

Mumpower were convicted, respectively, of Counts Eighteen and Twenty-Two.

51

McGarity was convicted of Count Thirty-Three, while Freeman and

Mumpower were convicted, respectively, of Counts Twenty-Nine and Thirty-Five.

70

which they received 360-month sentences; advertising child pornography, for

which they received 360-month sentences;52 transporting or shipping child

pornography, for which they received 240-month sentences;53 receiving child

pornography, for which they received 240-month sentences;54 and Count Forty,

obstructing justice, for which they received 240-month sentences.

The district judge sentenced the remaining defendant, Ronald White, to a

sentence different than any of his co-defendants. White was convicted of four

offenses: Count One, engaging in a child exploitation enterprise, for which he

received a life sentence; Count Two, conspiracy to advertise, receive, and possess

child pornography, and to obstruct an official proceeding, for which he received a

360-month sentence; Count Thirty-Nine, receiving child pornography, for which

52

Castleman, Lakey, and Lambert were convicted, respectively, of Counts

Five, Eight, and Nine of the Superseding Indictment.

53

Castleman, Lakey, and Lambert were convicted, respectively, of Counts

Seventeen, Nineteen, and Twenty of the Superseding Indictment.

54

Castleman, Lakey, and Lambert were convicted, respectively, of Counts

Twenty-Eight, Thirty-One, and Thirty-Two of the Superseding Indictment.

71

he received a 240-month sentence; and Count Forty, obstructing justice, for which

he received a 240-month sentence.55

Now, the defendants raise the following objections to their sentences.

A.

First, the defendants contend that their life sentences are grossly

disproportionate to their offenses and violate the Eighth Amendment’s prohibition

on cruel and unusual punishment. In support, they note the seemingly

disproportionate sentences in relation to other, non-violent crimes. Additionally,

they argue that the United States is out of touch with its international peers in

regards to its punishment of possessors of child pornography.

We review de novo the legality of a sentence under the Eighth Amendment.

United States v. Moriarty, 429 F.3d 1012, 1023 (11th Cir. 2005). However, when a

defendant fails to object on those grounds before the trial court, we review only

for plain error.56 United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005).

55

As noted above, we vacate White’s convictions under Count One and

Count Forty.

56

Neither McGarity nor White objected to their sentences before the district

court on Eighth Amendment grounds, so their objections will be reviewed for

plain error. The remaining defendants’ sentencing claims will be reviewed de

novo. See Raad, 406 F.3d at 1323.

72

Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.

Const. amend. VIII. Our jurisprudence recognizes a “narrow proportionality

principle that applies to noncapital sentences.” United States v Johnson, 451 F.3d

1239, 1242 (11th Cir. 2006) (quotation marks omitted). However, “[o]utside the

context of capital punishment, there [have been] few successful challenges to the

proportionality of sentences.”57 Id. The reason for such few successful challenges

is the level of deference we accord Congress’s “authority to determine the types

and limits of punishments for crimes.” Id. at 1242-43 (quotation marks omitted).

Accordingly, the burden of proof is on the defendant to make a threshold showing

that his sentence is “grossly disproportionate to the offense committed.” Id.

As an initial matter, we note that the defendants’ sentences were all within

the applicable advisory guidelines. Our reasoning in Farley is instructive on the

constitutionality of the sentences vis-à-vis the advisory guidelines. See Farley, 607

57

Indeed, we have “never found a term of imprisonment to violate the

Eighth Amendment, and outside the special category of juvenile offenders the

Supreme Court has found only one to do so.” United States v. Farley, 607 F.3d

1294, 1343 (11th Cir. 2010). The only case where the Supreme Court has found a

violation of the Eighth Amendment due to the length of imprisonment was Solem

v. Helm, 463 U.S 277, 280-81 (1983), in which the Court overturned a sentence of

life imprisonment for writing a bad check for $100.

73

F.3d at 1336-45. In that case, we considered at great length the propriety of Eighth

Amendment challenges to sentences that fell within the parameters of the advisory

guidelines. In approving a mandatory minimum sentence of thirty years for an

offense involving the intended sexual abuse of a child, we affirmed that we must

consider “the harm caused by the type of crime involved.” Id. at 1344 (citing

Harmelin v. Michigan, 501 U.S. 957 (1991)).

On review of the type and severity of the defendants’ crimes, we do not find

their sentences grossly disproportionate. In a surveillance that lasted for several

years and spanned several countries, law enforcement observed the defendants and

their cohorts sharing more than 400,000 images and 1,000 videos, many of which

showed brutal and sadistic sexual acts being committed against children of all ages

and nationalities. Standing alone, the number of images and videos at issue here is

sufficient to permit the sentences imposed. Accord United States v. Turner, 626

F.3d 566, 573-74 (11th Cir. 2010) (upholding 300-month sentence for possession

of 600 images of child pornography). However, the violence, disrespect, and

inhumanity of the acts photographed and recorded, gleefully shared between the

defendants and other members of their child pornography ring, further evidences

the type and severity of the defendants’ actions. See also Farley, 607 F.3d at 1343-

74

56 (refusing to find unconstitutional statutory minimum mandated by Congress in

similar child-related offense). Considering the harm caused by the child

pornography ring—sharing hundreds of thousands of images and videos reflecting

the most obscene acts being done to defenseless minors, encouraging the

production of more such obscenity, and energizing the continuous cycle of child

sexual abuse—none of the defendants’ sentences exceed constitutional limitations.

In so finding, we affirm our recognition in Farley that “the sexual abuse of

children, and the use of the internet to facilitate that abuse, are serious problems

affecting the health and welfare of the nation.” Farley, 607 F.3d at 1345. The

physical and emotional impact of child pornography upon its victims is only just

starting to be understood. See, e.g., United States v. Irey, 612 F.3d 1160, 1206-07

(11th Cir. 2010) (en banc) (detailing physical and emotional harm resulting from

sexual abuse related to production of child pornography); United States v. Pugh,

515 F.3d 1179, 1195-98 (11th Cir. 2008) (same). The district judge recognized

this impact and handed down appropriately proportionate sentences.

As a final matter, we also reject the defendants’ claim that their sentences

are unconstitutional in comparison to some sentences imposed by foreign

75

jurisdictions for similar offenses.58 We are bound to apply the laws of our country

as legislated by Congress and interpreted by subsequent case law. While our

courts have sometimes looked to foreign jurisdictions for the sake of comparison

in the context of the Eighth Amendment, Roper v. Simmons, 543 U.S. 551, 575-79

(2005) (considering American allowance of death penalty to juvenile offenders in

context of international community), we have never delimited our Constitution or

the powers of our Government on that basis alone. Compare Roper, 543 U.S. at

604 (O’Connor, J., dissenting) (considering weight given to international

findings); with Roper, 543 U.S. at 622-28 (Scalia, J., dissenting) (rejecting

consideration of other countries’ findings). Nor will we do so now. Our laws and

our Constitution, rather than those of foreign jurisdictions, control our findings.

B.

Lakey, Castleman, and Lambert argue violations of the Fifth and Sixth

Amendments in enhancing their sentences based on facts proved only by a

preponderance of the evidence. In support, they rely on United States v. O’Brien,

130 S.Ct. 2169 (2010). Additionally, White argues that the district court violated

58

For example, Castleman argues that the laws of such sovereign nations as

England, Canada, and Hong Kong–all of which more lightly punish possessors of

child pornography–should guide our hand.

76

his due process rights in relying upon speculation that he would pose a danger to

children if released from prison. In the absence of evidence, White contends that

such reliance was improper.59

We have repeatedly denied both Fifth and Sixth Amendment challenges

under these circumstances. As to the former, we have rejected the argument that

the Fifth Amendment requires that conduct not covered by charged offenses must

be proved beyond a reasonable doubt. See United States v. Ghertler, 605 F.3d

1256, 1269 (11th Cir. 2010) (foreclosing argument that judicial fact-finding by a

preponderance of the evidence violates the Fifth Amendment). Likewise, under the

Sixth Amendment, we do not limit a district court’s ability to engage in judicial

fact-finding at sentencing. So, for instance, in United States v. Belfast, we found

that “[u]nder an advisory guidelines regime, judicial fact-finding about relevant

conduct that supports a sentence within the statutory maximum set forth in the

United States Code does not violate the Sixth Amendment.” 611 F.3d at 827; see

also United States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005) (relying upon

59

As with our consideration of the defendants’ Eighth Amendment claim,

we review de novo all constitutional challenges to a sentence. United States v.

Paz, 405 F.3d 946, 948 (11th Cir. 2005). Because White did not raise a due

process challenge until appeal, we review his argument under the plain-error

standard.

77

unanimous Supreme Court agreement that the use of extra-verdict enhancements is

not unconstitutional in an advisory guidelines system).

Consequently, these challenges have no merit.

C.

All of the defendants challenge the two-level guideline enhancement

applied under U.S.S.G. § 3C1.1, claiming their actions to escape detection were

not obstructive but rather simply prophylactic. The defendants also contend the

district court erred in not making individual findings of fact supporting the

enhancement, while Castleman contends that his own actions in denying law

enforcement entry into his home and running a “wipe” program on his computer

cannot amount to obstruction where there was no proof at trial of the efficacy of

the “wipe” program.60

60

In any event, to the extent that Castleman contends the enhancement for

obstruction was inappropriate because there was no proof of the efficacy of the

“wipe” program, that argument is unavailing. See, e.g., United States v. Garcia,

208 F.3d 1258, 1262 (11th Cir. 2000), vacated and remanded on other grounds by

Garcia v. United States, 531 U.S. 1062 (2001), reinstated by United States v.

Garcia, 251 F.3d 160 (11th Cir. 2001).

78

Section 3C1.1 permits a two-level increase of a defendant’s base offense

level if certain conditions are met. Specifically, it allows a two-level enhancement

if:

(A) the defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice with respect to the

investigation, prosecution, or sentencing of the instant offense of

conviction, and (B) the obstructive conduct related to (I) the

defendant's offense of conviction and any relevant conduct; or (ii) a

closely related offense[.]

U.S.S.G. § 3C1.1. While the defendants claim that their actions taken to avoid

detection should not qualify for enhancement under § 3C1.1, we have recently

rejected this same argument in Wayerski, 624 F.3d at 1352. As we found in that

case, where there is ample evidence of “numerous obstructive actions,” the

Guidelines clearly contemplate that such actions qualify for the enhancement.61

See Wayerski, 624 F.3d at 1352 (noting previous recognition “that there is no

requirement that [a] defendant’s obstructive acts occur subsequent to the formal

commencement of an investigation”). See also U.S.S.G. § 3C1.1 comment. (n.1)

(permitting enhancement where “[o]bstructive conduct [] occurred prior to the

61

We distinguish this enhancement for obstruction of justice from its

statutory counterpart. Section § 1512(c) requires obstructive acts taken in

contemplation of “official proceedings,” which is narrower than § 3C1.1, which

has no such requirement.

79

start of the investigation of the instant offense of conviction . . . [and] was

purposefully calculated, and likely, to thwart the investigation or prosecution . . .

.”); Garcia, 208 F.3d at 1262. Accordingly, we reject the defendants’ challenge to

the two-level enhancement for obstruction of justice.

Moreover, the district judge did not err in failing to make specific individual

findings. In Wayerski, we explained that a district court need not make specific

findings “where . . . it both adopts a presentence investigation report that contains

specific findings and the defendant fails to request that the court make more

specific findings.” Wayerski, 624 F.3d at 1352. Here, the court explicitly adopted

the defendants’ PSRs, all of which contained specific findings. Moreover, none of

the defendants requested more specific findings. Therefore, there was no error.

We also refuse to hold clearly erroneous the factual finding regarding

Castleman’s obstruction of justice. The evidence submitted at trial was clear

regarding what transpired when agents sought lawful entry to Castleman’s home:

agents “knocked and announced” for over thirty minutes, but received no response

from within the home, even though agents at the opposite end of the home could

clearly distinguish the “knock and announce.” It took the agents calling a

locksmith—and entry through the garage, because the front door was barred from

80

within—for them to finally gain access into Castleman’s home. Once there, they

found Castleman next to his computer, running a “wipe” program on his computer.

It took the quick and decisive thinking of a FBI forensic computer examiner to

recognize what Castleman was doing and take appropriate steps to limit the

damage already done. Such proof surely substantiates the district court’s

imposition of the enhancement for obstruction.

D.

Two of the defendants, Mumpower and Castleman, also challenge the five-

level enhancement applied under § 2G2.2(b)(5) for engaging in a pattern of

activity involving the sexual abuse or exploitation of a minor. While Mumpower

concedes that his enhancement was based on three previous incidents of child

molestation—he molested his stepdaughter and stepson, convinced three female

children to expose their genitals and allow subsequent fondling, and encouraged

an eight-year-old girl to sit on his naked lap—he nonetheless argues that those acts

occurred over 30 years before his sentence and should not be considered part of a

“pattern of activity.” Castleman, on the other hand, argues that his sexual abuse of

his daughter, which was unrelated to the offense for which he was convicted,

cannot be considered “relevant conduct” under § 1B1.3, and thus the Guideline

81

commentary to § 2G2.2(b)(5), which explicitly authorizes inclusion of such

conduct, is internally inconsistent.

By its express terms, § 2G2.2(b)(5) allows a five-level increase “if the

defendant engaged in a pattern of activity involving the sexual abuse or

exploitation of a minor.” Under the “Definitions” commentary (note 1) to that

section, “pattern of activity” refers to “any combination of two or more separate

instances of the sexual abuse or sexual exploitation of a minor by the defendant,

whether or not the abuse or exploitation (A) occurred during the course of the

offense; (B) involved the same minor; or (C) resulted in a conviction for such

conduct.” U.S.S.G. § 2G2.2, cmt. (n.1). However, another section of the

Guidelines, § 1B1.3, provides that, unless otherwise stated, “relevant conduct”

includes actions “that occurred during the commission of the offense of

conviction, in preparation for that offense, or in the course of attempting to avoid

detection or responsibility for that offense.” U.S.S.G. § 1B1.3(a). It is the interplay

between these two sections upon which the defendants rely.

We find no difficulty in reconciling these two sections. Indeed, in

interpreting an earlier version of the same enhancement containing identical

language with identical commentary, we determined that “the Sentencing

82

Commission did not intend to limit the pattern of activity the court could consider

to conduct related to the offense of conviction.” United States v. Anderton, 136

F.3d 747, 751 (11th Cir. 1998) (“Because the [commentary] language . . . clearly

permits an increased offense level for conduct unrelated to the offense of

conviction, the district court did not err in increasing the [defendants’] offense

levels.”). Likewise, we held in Turner that “[n]othing in § 2G2.2(b)(5) or its

commentary suggests that the ‘pattern of activity’ must be temporally close to the

offense of conviction.” 626 F.3d at 573. There, we permitted the five-level

enhancement based on a defendant’s repeated sexual abuse of a child that had

occurred over twenty years before. Id. at 573.

Here, we discern no basis for not following Turner. Although Mumpower’s

sexual abuse of his stepdaughter and stepson and three other little girls occurred in

the 1970s or 1980s, even such temporally distant behavior may constitute a pattern

of activity under § 2G2.2(b)(5). Accord Turner, 626 F.3d at 573 (noting that

“pattern of activity” under § 2G2.2(b)(5) does not have to be “temporally close to

the offense of conviction” and thus upholding enhancement based on conduct

occurring years prior). Therefore, we reject Mumpower’s challenge.

83

Castleman’s argument is similarly unavailing. Explicit language within

§ 1B1.3 provides that relevant conduct is conduct relating to the offense of

conviction “unless otherwise specified.” U.S.S.G. § 1B1.3(a). As we found in

Anderton, the Guidelines “clearly permit[] an increased offense level for conduct

unrelated to the offense of conviction.” Anderton, 136 F.3d at 751. Likewise, we

find that the clear commentary language of the Guidelines authorizes an offense

level upward adjustment for a prior “pattern of activity” based upon Castleman’s

sexual abuse of his daughter, notwithstanding its lack of relationship to the offense

of conviction.

E.

Defendants Lambert and Lakey also assign error to the district court’s

decision to apply an enhancement for their offenses involving a victim “who had

not attained the age of 12 years,” pursuant to U.S.S.G. § 2G2.6(b)(1). Similarly,

Castleman contends that his guidelines range was improperly calculated on the

same basis. Each of the defendants claims that the enhancement was improperly

applied to him because he did not proximately cause any injury to the victims of

84

the child pornography, which they claim was caused by other individuals directly

involved in the underlying sexual molestation.62

By their terms, the relevant sections of the Sentencing Guidelines provide

for a four-level and a two-level enhancement, respectively, if “a victim . . . had not

attained the age of 12 years.” U.S.S.G. § 2G2.6(b)(1). Therefore, we must

determine whether 1) the individuals depicted in the child pornography were

victims; and 2) whether they were less than 12-years-old.

Both statutory and common law are clear in defining as victims any minors

depicted in child pornography. See 18 U.S.C. § 3509(a)(2)(A). See also New York

v. Ferber, 458 U.S. 747, 758-60 & n.10 (1982); Pugh, 515 F.3d at 1195-98.

Definition as a victim in this context requires no relationship between a possessor

of child pornography and the child depicted therein. Instead, a child is a victim

where he or she has been subjected to “a crime of physical abuse, sexual abuse, or

exploitation.” § 3509(a)(2)(A). Accordingly, the defendants’ contention that

proximate cause is required in this context is erroneous.

62

Because only Lakey objected to the district court about this enhancement,

we review his appeal de novo. Ferreira, 275 F.3d at 1024. However, we review the

other defendants’ appeals on this basis for plain error. United States v. Bonilla,

579 F.3d 1233, 1238 (11th Cir. 2009).

85

Nor is there any real dispute here that the individuals depicted in the

thousands of child pornography images and videos were not minors, as multiple

FBI agents testified that many of those images involved individuals known to be

children at the time of the abuse. Moreover, the defendants submitted no

contradictory evidence regarding the age of those individuals depicted in any of

the thousands of child pornography images and videos found in the defendants’

possession.

Given both aspects of the enhancements are satisfied here, we find no error.

F.

Only Castleman challenges the five-level enhancement applied to his

sentence for the receipt, or expectation of receipt, of a thing of value, pursuant to

U.S.S.G. § 2G2.2(b)(3)(B). He argues that he never expected to receive—and in

fact did not receive—anything in exchange for his online posting of child

pornography.

Section 2G2.2(b)(3)(B) provides for a five-level increase for the

transportation of material involving the sexual exploitation of a minor if the

underlying offense involved “[d]istribution for the receipt, or expectation of

receipt, of a thing of value, but not for pecuniary gain.” U.S.S.G.

86

§ 2G2.2(b)(3)(B). Commentary to the Guidelines further defines that operative

phrase as “any transaction, including bartering or other in-kind transaction, that is

conducted for a thing of value but not for profit.” U.S.S.G. § 2G2.2, cmt. (n.1).

The Guidelines recognize that a “thing of value” may be comprised of child

pornographic material received in trade, id., as does our case law. See, e.g., United

States v. Bender, 290 F.3d 1279, 1286 (11th Cir. 2002) (“[W]hen a defendant

trades child pornography in exchange for other child pornography, the defendant

has engaged in ‘distribution for the receipt, or expectation of receipt, of a thing of

value.’”) (quoting 2000 version of U.S.S.G. § 2G2.2(b)(2)).

The trial record amply evinces the nature of the child pornography exchange

between the ring members. During the course of the investigation, the ring shared

more than 400,000 images and 1,000 videos of child pornography, which was

often posted after a specific request by one of the ring members. The exchange of

child pornography—and the perceived onus on its members to participate in the

exchange—was central to the workings of the ring. Castleman himself participated

in the group sharing, both requesting the upload of certain child pornography and

apologizing for not being “able to keep up” due to a medical condition.

Communications such as these evidence the propriety of the “thing of value”

87

enhancement, where it is readily apparent that Castleman “sent child pornography

so that he would receive other child pornography in exchange.” Bender, 290 F.3d

at 1287. Thus, notwithstanding Castleman’s contention to the contrary, there was

clearly an expectation of sharing amongst the ring members. Under such

circumstances, the imposition of the five-level enhancement was proper.

G.

Freeman contends that his sentence should not have been enhanced because

of a prior Georgia state conviction. In 1997, he was convicted of enticing a minor

for indecent purposes, in violation of Ga. Code Ann. § 16-6-5. He now argues that,

because that conviction was not predicated on touching or attempting to touch a

minor, it cannot serve as the predicate for a sentencing enhancement under 18

U.S.C. §§ 2251(e) and 2252A(b)(1). In other words, he argues that because both

those enhancements apply only if the prior conviction involved “abusive sexual

contact,” rather than the more expansive “abusive sexual conduct,” neither is

applicable here.

Both § 2251(e) and § 2252A(b)(1) criminalize activity involving sexual

exploitation of minors, and both enhance the punishment on the basis of an earlier

state conviction. Section 2251(e) provides that any person who violates, attempts,

88

or conspires to violate it shall be “imprisoned not less than 15 years nor more than

30 years,” 18 U.S.C. § 2251(e), and further provides that a term of “not less than

25 years nor more than 50 years” is required if an individual “has one prior

conviction . . . under the laws of any State relating to aggravated sexual abuse,

sexual abuse, [or] abusive sexual contact involving a minor.” Id. Similarly,

§ 2252A(b)(1) mandates a term of imprisonment for “not less than 5 years and not

more than 20 years,” but increases that term of imprisonment to “not less than 15

years nor more than 40 years” if an individual has “a prior conviction . . . under

the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive

sexual conduct involving a minor.” Id.

Although our case law is sparse on this issue, those cases that exist broadly

interpret the phrase “abusive sexual conduct.” So, for example, we held in

Johnson that a prior state conviction for performing a lewd act in front of a minor

related to “abusive sexual conduct involving a minor,” and was therefore subject

to an enhancement under § 2252A(b)(1). Johnson, 451 F.3d at 1243. Likewise, we

concluded in United States v. Maupin, 520 F.3d 1304, 1308 (11th Cir. 2008), that

a nolo contendere plea to state charges for possession of child pornography

constituted a prior state conviction within the meaning of § 2252A(b)(1) and (2).

89

Our circuit is not alone in this broad interpretation. The Supreme Court,

although in a different statutory context, has also interpreted the phrase “relating

to” in an inclusive fashion. In Morales v. Trans World Airlines, Inc., the Court

considered the phrase in the context of 18 U.S.C. § 1305(a)(1) and determined that

it means “to stand in some relation; to have bearing or concern; to pertain; refer; to

bring into association with or connection with . . . .” 504 U.S. 374, 383 (1992)

(citation omitted). Likewise, although not binding on us, the Ninth Circuit has

similarly interpreted the statute in question, stating that Ҥ 2252A does not simply

mandate a sentencing enhancement for individuals convicted of state offenses

equivalent to sexual abuse. Rather, it mandates the enhancement for any state

offense that stands in some relation, bears upon, or is associated with that generic

offense.” United States v. Sinerius, 504 F.3d 737, 743 (9th Cir. 2007) (emphasis in

original).

Because Freeman’s prior conviction was under Georgia law, we reference

Georgia’s own interpretation of this issue. Georgia defines the offense for which

Freeman was convicted as occurring when “a person commits the offense of

enticing a child for indecent purposes when he or she solicits, entices, or takes any

child under the age of 16 years to any place whatsoever for the purpose of child

90

molestation or indecent acts.” Ga. Code Ann. § 16-6-5(a). Georgia courts define

“indecent” as notice to the defendant that “he or she was being charged with

committing an unlawful act with a lustful intent against a child.” Hammock v.

State, 411 S.E.2d 743, 746 (Ga. Ct. App. 1991). By its nature, then, § 16-6-5(a)

“proscribes the solicitation of a minor to engage in sexual conduct or conduct

which, by its nature, is a sexual offense against a minor.” State v. Marshall, 698

S.E.2d 337, 339-40 (Ga. Ct. App. 2010) (quotation marks omitted).

Therefore, under Georgia’s definition of Freeman’s prior conviction and our

precedent applying the enhancement in question, we find that the district judge did

not err. In that Freeman’s prior conviction was founded upon his discussions of

illicit sexual acts with a minor, such actions necessarily related to “aggravated

sexual abuse, sexual abuse, or abusive sexual conduct involving a minor” under 18

U.S.C. § 2252A(b)(1). See Morales, 504 U.S. at 383. In this context, any

perceived difference argued by Freeman between “abusive sexual conduct” and

“abusive sexual contact” is overcome by our interpretation of the phrase “relating

to.” Accordingly, the district court did not err in enhancing Freeman’s sentence

under either § 2251(e) or § 2252A(b)(1).

H.

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Lastly, all of the defendants argue that the district court erred when

sentencing them to life in prison. In support, they contest the procedural and

substantive reasonableness of their sentences. As to procedural reasonableness,

they claim that the district court erred in calculating their guidelines ranges. They

also contend that the district judge created an unwarranted sentencing disparity by

failing to provide each of them individual consideration. Challenging the

substantive reasonableness of their sentences, the defendants assert that their

sentences were greater than necessary to achieve the purposes of sentencing and

that the district judge improperly relied upon the child pornography Guidelines,

which they claim are flawed. We find that the defendants’ sentences were neither

procedurally nor substantively unreasonable.

1.

When reviewing the procedural reasonableness of a sentence, we will first

ensure that “the district court committed no significant procedural error, such as

failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). See also United

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States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (same). In explaining its

reasons for imposing a sentence, the district court need not discuss each factor.

Irey, 612 F.3d at 1194-96. Rather, “[t]he sentencing judge should set forth enough

to satisfy the appellate court that he has considered the parties’ arguments and has

a reasoned basis for exercising his own legal decisionmaking authority.” Rita v.

United States, 551 U.S. 338, 356 (2007). The district court’s acknowledgment that

it considered the defendants’ arguments at sentencing and that it considered the

factors set forth in § 3553(a) alone is sufficient explanation for a particular

sentence. United States v. Scott, 426 F.3d 1324, 1329-30 (11th Cir. 2005).

On consideration of the voluminous trial record, we find no basis for any

claim of procedural unreasonableness. To put the sentencing in its proper context,

all of the defendants now before us were tried en masse. The Government, through

an exhaustive case-in-chief, introduced individual proof of each defendant’s

offenses. For each defendant, the Government introduced numerous witnesses,

including but not limited to Constable Power, the FBI agent-in-charge of the

individual investigation relevant to each defendant, and numerous forensic experts

who analyzed the postings saved by Power as well as those found on the

defendants’ computers.

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There was therefore overwhelming evidence of each of the defendants’ guilt

and personal circumstances prior to their eventual convictions. It is in that context,

then, that the district judge held the sentencing hearing. There, he listened to each

defendant’s arguments, reviewed in detail each defendant’s PSI objections, and

explained on the record that he arrived at each sentence after consideration of both

the Guidelines and the factors delineated by 18 U.S.C. § 3553(a). As we noted in

Scott, this type of inquiry and acknowledgment aids our inquiry into procedural

reasonableness. Scott, 426 F.3d at 1330.

Moreover, the district judge did not miscalculate the defendants’ guidelines

ranges. The defendants were sentenced under two related guidelines: U.S.S.G. §

2G2.2, and U.S.S.G. § 2G2.6 (“CEE Guideline”). The results under those two

guidelines varied according to the respective enhancements applicable to the

defendants. The district judge sentenced McGarity, Castleman, Freeman, and

Mumpower under Guideline 2G2.2, resulting in a total offense level of 47.

Defendants Lakey, Lambert, and White were sentenced under the CEE Guideline,

which resulted in a total offense level of 43 for each. As we have already

considered and rejected the objections the defendants raised to their respective

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applicable enhancements, we find that the district court did not err in its

ministerial function of calculating the guidelines range and the resulting sentence.

2.

Turning next to the substantive reasonableness of the defendants’ sentences,

“we must, as the Supreme Court has instructed us, consider the totality of the facts

and circumstances.” Irey, 612 F.3d at 1189. “[O]rdinarily we . . . expect a sentence

within the Guidelines range to be reasonable.” United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005). We will vacate a sentence for substantive

unreasonableness only upon a “definite and firm conviction that the district court

committed a clear error of judgment in weighing the § 3553(a) factors by arriving

at a sentence that lies outside the range of reasonable sentences dictated by the

facts of the case.” Irey, 612 F.3d at 1190 (quotation marks omitted). The burden of

proof is on the party challenging the sentence. United States v. Tome, 611 F.3d

1371, 1378 (11th Cir. 2010).

Although the defendants contend that their lengthy sentences were greater

than necessary to achieve the varied goals of sentencing, we do not agree. During

the sentencing, the district judge repeatedly recognized the extent, severity, and

nature of the defendants’ involvement in child pornography. Indeed, on more than

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one occasion he observed that the instant case was the most egregious he had seen.

As we have noted, the harm to the victim of child pornography cannot be

overstated.

[S]exually exploited children are unable to develop healthy

affectionate relationships in later life, have sexual dysfunctions, and

have a tendency to become sexual abusers as adults. Sexual

molestation by adults is often involved in the production of child

sexual performances. When such performances are recorded and

distributed, the child's privacy interests are also invaded . . . .

Pugh, 515 F.3d at 1195-96.

Nor do we believe that the defendants’ sentences here created an

unwarranted sentencing disparity. Because of the advisory nature of the

Sentencing Guidelines, any district court that considers the total offense level

thereunder necessarily limits any unwarranted disparity that might arise in the

sentences of defendants in diverse locales. See Gall, 552 U.S. at 54. A review of

the record makes it clear that there is no concern over any unwarranted disparity

here.

Therefore, we find that the defendants’ sentences were neither substantively

nor procedurally unreasonable.

IX.

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The final issue we address pertains to the district judge’s restitution award

against James Freeman. During the investigation leading up to trial, the

Government identified a certain known child victim, “Amy,” in the pornography

possessed by the defendants.63 Numerous still images and videos of Amy were

found in the defendants’ possession at the time of their arrest. However, the

Government sought restitution only from defendant Freeman. In so doing, the

Government relied upon 18 U.S.C. § 2259(c).

At the scheduled hearing, the district judge considered testimony from

Amy’s attorney, as well as two experts. Her attorney testified regarding the

suffering of his client and her economic losses resulting from being a victim of

child pornography. He also presented a case-study report he had commissioned

from an economist, in which the Smith Economics Group opined that Amy’s lost

earnings totaled $2,855,173 and the cost of her future treatment was $512,681.

Next, the district judge heard the testimony of an expert in forensic and

developmental pediatrics, Dr. Sharon Cooper, who testified regarding the nature of

harm suffered by victims of child pornography. Lastly, an expert in psychology

63

“Amy” is a pseudonym, intended to protect the identity of the child victim

of the pornography at issue. Amy was sexually molested by her uncle beginning

when she was four-years-old.

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with a focus on child trauma, Dr. Joyana Silberg, testified that she had evaluated

Amy on four occasions—none of which occurred after Freeman’s arrest or

prosecution—and found that her condition had deteriorated since Amy learned of

the widespread availability of her images on the internet. Ultimately, the district

judge awarded restitution in the amount of $3,263,758.00 against James Freeman.

Now, Freeman appeals that award. In support, he states four bases for

appeal: 1) any restitution award is barred by the Government’s purported failure to

offer proof that his possession of images and videos of Amy arose from his actions

which were the subject of the Superseding Indictment; 2) Amy is not a “victim”

within the meaning of § 2259;64 3) even if Amy qualifies as a victim under § 2259,

the Government offered no proof that his conduct was the proximate cause of her

injury;65 and 4) the restitution amount was unreasonable. While we find Freeman’s

first two contentions meritless, we agree with Freeman’s contention regarding

proximate cause and therefore need not reach the reasonableness of the restitution

64

“Whether a person is a victim is a legal conclusion we review de novo.”

United States v. McDaniel, 631 F.3d 1204, 1207 (11th Cir. 2011) (quotation marks

and citation omitted).

65

We review a factual finding of proximate cause for clear error. See

McDaniel, 631 F.3d at 1207 (citing United States v. Robertson, 493 F.3d 1322,

1334 (11th Cir. 2007)).

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amount. Accordingly, we remand for an evidentiary hearing to determine whether

Amy’s harm was proximately caused by Freeman’s actions and, if so, to determine

a reasonable amount of damages resulting from Freeman’s conduct to be awarded

in her favor.

A.

First, Freeman argues that a restitution award is improper where, as here, it

is based on conduct not charged in the Superseding Indictment. Although he

concedes that he possessed images of Amy, he argues that because he was not

charged with possession of child pornography—and there was “no evidence that

he transported, advertised or received the images of Amy as part of the crimes

charged in the [Superseding I]ndictment”—Amy cannot have been victimized

within the meaning of § 2259. In support, Freeman cites United States v. Woods,

689 F. Supp. 2d 1102, 1106 (N.D. Iowa 2010).

In Woods, a grand jury returned a two-count indictment against the

defendant, charging receipt of child pornography, in violation of 18 U.S.C.

§ 2252(a)(2)(A), and possession of child pornography, in violation of 18 U.S.C.

§ 2252(a)(5)(B). Subsequently, the defendant entered a plea agreement with the

Government, in which he pleaded guilty only to the first count for receipt. The

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second count, which included charges of possession of certain pornography

involving a child named Vicky, was dismissed. At sentencing, the district court for

the Northern District of Iowa determined that mandatory restitution under 18

U.S.C. § 2259(c) was improper, given the defendant’s guilty plea only as to Count

One obviated any possible finding as to Count Two and whether Vicky was a

victim thereunder. It is that finding upon which Freeman now relies.

Woods is materially distinguishable from the instant case.66 While Freeman,

like the defendant in Woods, was not convicted of possession of child

pornography, he was nonetheless found guilty of at least one offense charged by

the Superseding Indictment that involved his possession of child pornography.

Count Two of the Superseding Indictment charged Freeman with, among other

things, conspiring to possess child pornography in violation of 18 U.S.C.

§ 2256(8)(A). That child pornography conspiracy necessarily includes the images

of Amy, which were but a part of the child pornography found in Freeman’s and

all other defendants’ possession and which were eventually admitted into evidence

66

Even if Woods were not distinguishable, we are of course not bound by

its holding. It is axiomatic that this Circuit is bound only by its own precedents

and those of the Supreme Court, Bonner, 661 F.2d at 1209 (“[T]he decisions of

one circuit are not binding on other circuits”), and certainly this is even more true

in the context of a district court determination from another circuit.

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at trial. Cf. United States v. Alas, 196 F.3d 1250, 1251-52 (11th Cir. 1999)

(finding that member of conspiracy could be held liable for restitution for

“reasonably foreseeable” acts committed by the conspiracy); see also United States

v. Laney, 189 F.3d 954, 965-66 (9th Cir. 1999) (same). Unlike in Woods, where

the defendant’s charge for possession of child pornography was dismissed as a

result of a plea deal, here Amy was found to be a victim of Freeman’s offense of

conviction. Therefore, Freeman’s restitution is grounded not upon a crime of

which he was not convicted, but instead upon the possession of child pornography

that served as the bases for his numerous convictions.

B.

Additionally, Freeman contends that Amy is not a victim within the

meaning of § 2259. We have recently considered and rejected a similar argument

in McDaniel. We do so again.

In McDaniel, a defendant was convicted of possessing child pornography,

in violation of 18 U.S.C. §§ 2252(a)(5)(B) and 2256(8)(A). In addition to being

sentenced to 60 months’ imprisonment, the district court ordered restitution in the

amount of $12,700.00. On appeal, the defendant argued that the child depicted in

the pornography in his possession—Vicky, a 10-year-old girl that was being

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raped—was not a victim within the meaning of § 2259(c). Finding that our Circuit

has long recognized that minors in child pornography are the “primary victims” of

such criminal activity, we observed that later dissemination of that pornography

“exacerbates [the original] harm, not only by constituting a continuing invasion of

privacy but by providing the very market that led to the creation of the images in

the first place.” McDaniel, 631 F.3d at 1208 (quoting United States v. Tillmon,

195 F.3d 640, 644 (11th Cir. 1999)). Thus, we recognized a cycle involving the

sexual abuse of children, the production of child pornography, and heightened

demand for more such abhorrent activity. Id. Given that cycle, we had no difficulty

holding that Vicky was a victim within the meaning of § 2259(c). Id.

Likewise, we have no difficulty finding that Amy is a victim here. The

evidence presented by the Government and the testimony submitted to the court at

the restitution hearing support a finding regarding the devastating impact child

pornography has had upon Amy’s well-being. Raped as a four-year old and for

years afterwards, Amy’s victimization by her uncle is obvious. Although the

victimization resulting from an individual’s subsequent viewing of the resulting

child pornography may be more subtle, both the Supreme Court and our Court

have found that child pornography comprises a similar harm. Indeed, the Supreme

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Court in Ferber noted that child pornography creates “a permanent record of the

children’s participation and the harm to the child is exacerbated by [its]

circulation.” 458 U.S. at 759. We echoed that concern in McDaniel, when we

recognized that numerous harms “stem directly from an individual’s possession of

child abuse images.” McDaniel, 631 F.3d at 1208. Here, the record before the

district court of the harm done to Amy, both by her uncle and by possessors of

child pornography like James Freeman, is unassailable. Accordingly, the district

judge did not err in finding that Amy was a victim within the meaning of

§ 2259(c).

C.

By its terms, Section 2259 requires restitution for a victim if he or she was

“harmed as a result of a commission of a crime under this chapter.” 18 U.S.C.

§ 2259(c). Upon such a finding of harm, restitution to the victim of child

pornography is mandatory. See id. § 2259(a) (mandating a district court “shall

order restitution for any offense under this chapter”); McDaniel, 631 F.3d at 1207.

Moreover, Congress requires any such restitution to “pay the victim . . . the full

amount of the victim’s losses.” 18 U.S.C. § 2259(b)(1). The amount of such losses

is calculable by reference to certain costs incurred by the victim. See id.

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§ 2259(b)(3)(A)-(F). Our interpretation of § 2259 limits any restitution order to

damages proximately caused by the defendant’s conduct. McDaniel, 631 F.3d at

1208.

Now, Freeman argues mere possession of child pornography—in the

absence of production, recreation, or transportation of the same—is insufficient to

constitute proximate cause of injury. In support, he points to several district court

decisions—both within this Circuit and beyond—that found no proximate

causation existed under similar circumstances. See, e.g., United States v. Faxon,

689 F. Supp. 2d 1344, 1356-57 (S.D. Fla. 2010) (denying restitution for lack of

proximate cause); United States v. Van Brackle, No. 2-08-CR-042-WCO, 2009

WL 4928050 (N.D. Ga. Dec. 17, 2009) (same); Woods, 689 F. Supp. 2d at 1112

(refusing restitution where the Government had failed to satisfy its burden of

showing that any of victim’s “losses were caused by [d]efendant’s possession of

her images”).

Our own holdings on this point are instructive. In particular, in McDaniel

we considered a similar claim by the defendant in that case, who had argued that

“restitution is appropriate only in cases where the defendant actually sexually

abused a child or produced the child pornography because, in those cases, the

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defendant’s conduct actually harmed the child.” McDaniel, 631 F.3d at 1209. In

that case, the district court had ordered restitution of $12,700 against the

defendant. We affirmed that order, recognizing that possession of child

pornography is covered by § 2259, and that restitution is appropriate against those

who possess child pornography as well as those who “sexually abuse[] a child or

produce[] the child pornography.” Indeed, we found that possessors of child

pornography can constitute a “slow acid drip” of trauma, which may be

exacerbated “each time an individual views an image depicting her abuse.” Id.

This slow drip resulted from the “extraordinarily distressing and emotionally

painful” reaction suffered by the victim “each time an individual views an image

depicting her abuse.” Id. Therefore, our finding in McDaniel not only affirmed a

§ 2259 order for restitution against a possessor of child pornography, but it also

recognized implicitly that a § 2259 restitution order is only appropriate where the

Government can demonstrate the “slow drip” a particular defendant’s actions had

upon the victim.

This implicit requirement was made explicit by a recent Second Circuit

case, United States v. Aumais, 656 F.3d 147 (2d Cir. 2011). In that case, a man

named Gerald Aumais attempted to enter the United States from Canada, but was

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pulled over at the border. Upon a search of his car, it was discovered that he

possessed DVDs and other electronic storage devices, many of which contained

thousands of still images of child pornography, as well as over one hundred videos

of the same, some of which involved the sexual abuse of “Amy.” Id. at 149.

Aumais admitted that he owne

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