Petition for Writ of Certiorari — Avery Smartt, Petitioner v. United States

Case: 21-1637

Filed: 01/24/2023

Document: 69

Pages: 10

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No. 21-1637

United States of America,

Plaintiff-Appellee,

v.

Avery Smartt,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 18-CR-30138-NJR-01 — Nancy J. Rosenstengel, Chief Judge.

Argued August 3,2022 — Decided January 24,2023

Before Sykes, Chief Judge, and Scudder and St. Eve,

Circuit Judges.

Sykes, Chief Judge. Avery Smartt had a sexual relationship

with a 15-year-old runaway and traveled around the country

with her as he worked as an over-the-road trucker. Along

the way he took sexually explicit photos of her. When she

got pregnant, he returned her to her hometown of Alton,

Illinois. The FBI started investigating when the girl—

identified as S.S. in the district court and here—sought

Case: 21-1637

Document: 69

Filed: 01/24/2023

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No. 21-1637

carrying his burden. Indeed, his arguments are frivolous. We

affirm.

I. Background

In April 2017 the Illinois Department of Children and

Family Services notified the FBI that S.S., then 15 years old

and four months pregnant, was at the hospital in Alton

reporting that she had traveled across the country with a 38year-old truck driver and was pregnant with his child. The

FBI opened an investigation, and Special Agent Tyrone Forte

interviewed S.S. with other agents. She identified the truck

driver as Avery Smartt and said that she met him in East

St. Louis in the early fall of 2016 after she ran away from

home. They had a sexual relationship, and she lived with

him for several months. She said that she had accompanied

Smartt on his trips around the country as an over-the-road

trucker and that Smartt had taken nude photos of her during

these travels. When she discovered she was pregnant, Smartt

took her back to Alton.

S.S. described the mobile devices—phones and tablets—

that Smartt used to take the photos. Based on the interview

with S.S. and additional investigation, the agents obtained a

search warrant for Smartt's home, where they seized his

digital devices. Forensic searches of the devices revealed text

messages between Smartt and S.S and also photos of S.S.,

some depicting her engaging in sex acts. A federal grand

jury in the Southern District of Illinois indicted Smartt for

producing child pornography, 18 U.S.C. § 2251(a).

While in jail pending trial, Smartt attempted to mail let­

ters to friends urging them to contact S.S. to persuade her to

recant her statements about their relationship or just "disap-

Case: 21-1637

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Pages: 10

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ing some things on the overhead or even on

the monitors, the [government will have a—

[i]t's a folder, right, ... for each juror?

THE GOVERNMENT: Yes, Your Honor. That's

correct, Your Honor.

THE COURT: All right. And then we will col­

lect those whenever we are finished.

THE GOVERNMENT: And, Your Honor, just

for the record, we won't distribute those fold­

ers until a different witness testifies.

THE COURT: Oh, I'm sorry. Okay, so at a dif­

ferent time. But, at some point you [the jurors]

will get an individual folder [of exhibits].

S.S. testified that she met Smartt in East St. Louis some­

time around Labor Day of 2016 and they began a sexual

relationship almost immediately. He was 38 at the time, and

she had just turned 15 (she was born in August 2001). She

admitted that she initially lied to Smartt about her age: she

told him she was 18. S.S testified that she lived with Smartt

at his home in East St. Louis and often accompanied him as

he traveled around the country as an over-the-road trucker.

On some of these trips, she said, Smartt took photos of her

engaging in sex acts.

Continuing her testimony, S.S. explained that sometime

in January 2017, she discovered that she was pregnant with

Smartt's child. At first she was too scared to say anything to

him. At some point during a long road trip to California, she

told him that she was pregnant and came clean about her

age. They eventually returned to East St. Louis, and he

packed up her belongings and took her back to Alton.

Case: 21-1637

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No. 21-1637

child-pornography offense. Defense counsel pointed out that

the government relied entirely on S.S.'s testimony about her

age and did not produce any corroborating documentary

evidence such as a birth certificate or driver's license.

The jury found Smartt guilty on both counts. The judge

sentenced him to concurrent prison terms of 300 months on

the child-pornography count and 240 months on the

witness-tampering count.

II. Discussion

Smartt argues that the judge committed reversible error

by referring to S.S. as "the victim" in front of the jury and by

saying that she was "just making sure" that the prosecutor

planned to move the admission of all 14 sexually explicit

photos at some point during the trial. These remarks, he

contends, signaled pro-government bias.

Smartt did not object to either statement, which forfeits

plenary review of these claims on appeal. Our review is

therefore limited to correcting plain error. Fed. R. CRIM.

P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993);

United States v. Chavez, 12 F.4th 716, 728 (7th Cir. 2021).

Plain-error review is a "stringent" legal standard. United

States v. Nance, 236 F.3d 820, 825 (7th Cir. 2000). Smartt must

establish that (1) an error occurred; (2) the error was

"plain"—i.e., obvious or clear; (3) the error affected his

substantial rights; and (4) the error seriously affected the

fairness, integrity, or public reputation of the proceedings.

Chavez, 12 F.4th at 728.

Smartt must carry his burden on all four of these ele­

ments. Even errors that are obvious or clear do not warrant

reversal unless the defendant can show an effect on his

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We've summarized the trial record above and see no need

for repetition. With such extensive evidence of guilt, there is

not the remotest possibility that Smartt would have been

acquitted had the judge not referred to S.S. as the victim. See

United States v. Barnhart, 599 F.3d 737, 746 (7th Cir. 2010)

(holding that the judge's improper questioning of a witness

did not prejudice the defendant under the plain-error stand­

ard because the evidence pointed strongly to the defendant's

guilt).

Nor was the "just making sure" comment an error. The

judge had just heard S.S. identify and testify about 14 sexual­

ly explicit photographs that were the subject of the childpornography charge, but the prosecutor had moved the

admission of only one. The judge's comment reflected a

reasonable effort to manage the flow of trial evidence rather

than a pro-government signal to the jury. Judges have wide

discretion to control the mode and order of the presentation

of evidence at trial and even to question witnesses to clarify

testimony or otherwise assist the jury's understanding of the

evidence. See Fed. R. Evid. 611(a), 614(b); see also Barnhart,

599 F.3d at 743; United States, v. Winbush, 580 F.3d 503, 508

(7th Cir. 2009); United States v. Washington, 417 F.3d 780, 78384 (7th Cir. 2005). The judge's comment was well within this

broad discretion. Indeed, it was entirely unremarkable;

nothing about it conveyed a thumb on the scale in favor of

the prosecution.

And for the reasons we've already explained, the "just

making sure" comment had no effect on the outcome of the

trial given the overwhelming evidence of guilt. There is no

possibility that Smartt would have been acquitted but for

this unobjectionable comment from the judge.

Case: 21-1637

Document: 78

Filed: 03/23/2023

Pages: 1

3Sm*feh jsfaies (Eourt of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

March 23, 2023

Before

DIANE S. SYKES, Chief Judge

MICHAEL Y. SCUDDER, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 21-1637

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

AVERY SMARTT,

Defendant-Appellant.

Appeal from the United States District

Court for the Southern District of Illinois

No. 18-CR-30138-NJR-01

Nancy J. Rosenstengel,

Chief Judge.

ORDER

On consideration of the petition for rehearing and for rehearing en banc, no judge

in active service requested a vote on the petition for rehearing en banc, and all judges on

the original panel voted to deny rehearing. It is therefore ordered that the petition for

rehearing and for rehearing en banc is DENIED.

Case: 21-1637

Filed: 01/21/2022

Document: 36

Pages: 1

'Mnxhh j&hdtee Court of Apprato

For the Seventh Circuit

Chicago, Illinois 60604

January 21,2022

By f/ie Court:

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 21-1637

v.

]

]

]

]

Appeal from the United

States District Court for

the Southern District of

Illinois.

]

AVERY SMARTT,

Defendant-Appellant.

] No. 3:18-cr-30138-NJR~l

1

] Nancy J. Rosenstengel,

j

Chief Judge.

Pursuant to this court’s order of December 16,2021, IT IS ORDERED that Amir

Mohabbat, CfflCAGOLAND & SUBURBAN LAW FIRM, P.C., 248 S. Marion Street,

Oak Park, IL 60302, amir@chicagolandlawfirm.com, is appointed to represent

defendant-appellant Avery Smartt pursuant to die provisions of the Criminal Justice

Act. Counsel is directed to contact the defendant-appellant immediately.

Briefing shall proceed as follows:

1.

Defendant-appellant shall file his brief and required short appendix on or

before April 21,2022.

2.

Plaintiff-appellee shall file its brief on or before May 23,2022.

3.

Defendant-appellant shall file his reply brief, if any, on or before

June 13,2022.

IT IS FINALLY ORDERED that the District Court add attorney Amir Mohabbat

to their CM/ECF database for purposes of accessing District Court documents.

Important Scheduling Notice!

Hearing notices are mailed shortly before the date of oral argument. Please note that counsel's unavailability for oral argument

must be submitted by letter, filed electronically with the Clerk's Office, no later than the filing of the appellant's brief in a criminal

case and the filing of an appellee's brief in a civil case. See Cir. R. 34(b)(3). The court's calendar is located at

http://www.ca7.uscourts.gov/cal/argcalendar.pdf. Once scheduled, oral argument is rescheduled only in extraordinary

circumstances. See Cir. R. 34(b)(4), (e).