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United States v. Lively

United States Court of Appeals, Sixth Circuit

March 27, 2017

United States of America, Plaintiff-Appellee,
Riley Patrick Lively, Defendant-Appellant.

          Argued: June 16, 2016

         Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:13-cr-00162-Robert J. Jonker, District Judge.



          Stuart G. Friedman, Southfield, Michigan, for Appellant.

          Tessa K. Hessmiller, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

         ON BRIEF:

          Stuart G. Friedman, Southfield, Michigan, for Appellant.

          Tessa K. Hessmiller, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

          Before: MOORE, SUTTON, and DONALD, Circuit Judges.

          MOORE, J., delivered the opinion of the court in which SUTTON, J., joined, and DONALD, J., joined in part. DONALD, J. (pg. 25), delivered a separate opinion concurring in part and in the judgment.


          KAREN NELSON MOORE, Circuit Judge.

         Title 18 U.S.C. § 2251(a) is a statute with two parts. It criminalizes (1) sexually exploiting a minor "for the purpose of producing any visual depiction of" that sexual exploitation (2) if, among other things, "that visual depiction was produced or transmitted using materials that have" a nexus to interstate or foreign commerce.

         In this case, there is no question that the government has satisfied the first part of § 2251(a). In April 2009, Riley Lively sexually abused a nine-year-old boy. Lively's friend, Robert Norwood-Charlier, took four photographs of that encounter with a Kodak digital camera that held a SanDisk digital memory card (the "SanDisk Images"). Plainly, Lively sexually abused the boy "for the purpose of producing" those four "visual depictions" of this sexual abuse.

         A closer question is whether the government has also satisfied § 2251(a)'s second part: its interstate-commerce requirement. At some time after he photographed Lively abusing the boy, Norwood-Charlier copied the four images of that incident from his camera's SanDisk memory card onto his computer's Seagate hard drive. The parties stipulated that that hard drive was manufactured in Thailand. At Lively's trial, the government relied exclusively on the Seagate hard drive's origin to satisfy § 2251(a)'s interstate-commerce element. The government did not, however, introduce any evidence suggesting that Lively knew Norwood-Charlier owned the Seagate hard drive-let alone that Lively intended Norwood-Charlier to copy images of Lively and the boy onto it. Put simply, the government did not prove that Lively sexually abused the boy for the purpose of producing the visual depictions that ended up on Norwood-Charlier's hard drive (the "Hard-Drive Images").

         Under the government's reading of § 2251(a), it was enough to prove that Lively sexually abused the boy for the purpose of producing some visual depiction of child pornography, as long as someone, somewhere, at some time actually produced a visual depiction of Lively abusing the boy using materials that had been transmitted in interstate or foreign commerce. Thus, when Lively moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, arguing that the government had failed to satisfy § 2251(a)'s interstate-commerce requirement, the government pointed to Norwood-Charlier's Thai-made hard drive-and only the hard drive.

         That was a tactical error. The government's reading of § 2251(a) is inconsistent with the statute's text. It ignores the statute's structure. And it finds no support in caselaw interpreting § 2251(a).

         Nevertheless, we conclude that the government introduced additional evidence that- viewed in the light most favorable to the government-satisfied § 2251(a)'s interstate-commerce requirement. For that reason, we must reject Lively's Rule 29 argument on appeal. Lively raises two additional challenges to his conviction, but both are unavailing.

         For the reasons set forth below, we AFFIRM Lively's conviction.


         A. Facts

         In April 2009, Norwood-Charlier invited Lively and Bryon Quackenbush to spend the weekend with him in Kalamazoo, Michigan. R. 28 (Gov't Resp. to Def.'s Mot. to Dismiss Indictment at 3) (Page ID #78); R. 86 (Trial Tr. (Schomer) at 161:3-5, 168:19-169:1) (Page ID #712, 719-20). The three men met in online chatrooms: Lively lived in California, and Quackenbush lived in Nevada. PSR ¶ 21; R. 28 (Gov't Resp. to Def.'s Mot. to Dismiss Indictment at 1) (Page ID #76). Norwood-Charlier was living with Michelle Schomer, the ex-wife of Norwood-Charlier's father. R. 86 (Trial Tr. (Schomer) at 161:25-162:12 (Page ID #712-13). Schomer had three children, including Lively's victim, who was nine years old at the time of Lively's visit. Id. at 160:9-161:2 (Page ID #711-12).

         Lively does not dispute what happened next. Norwood-Charlier photographed Lively performing oral sex on the boy in the boy's bedroom. R. 87 (Trial Tr. at 359:21-360:21) (Page ID #910-11). The incident was pre-planned: Norwood-Charlier invited Lively and Quackenbush to Michigan so they could sexually abuse this boy and another of Schomer's children. PSR ¶ 25.

         On April 27, 2009, FBI agents executed a search warrant at Norwood-Charlier's home. R. 87 (Trial Tr. (Johnson) at 234:7-11) (Page ID #785). The agents were searching for "objects or articles" used to produce child pornography. Id. at 234:14-21 (Page ID #785). They arrested Norwood-Charlier and recovered three items that would prove important in Lively's eventual prosecution: Norwood-Charlier's Kodak digital camera, the SanDisk memory card that was inside the camera, and a computer that contained a Seagate hard drive. Id. at 234:22-24, 237:6- 14, 244:21-245:4 (Page ID #785, 788, 795-96); R. 87 (Trial Tr. (Zentz) at 287:8-14, 292:5-23, 294:5-7) (Page ID #838, 843, 845).

         Norwood-Charlier was eventually indicted for, and pleaded guilty to, producing two child-pornography videos. R. 28 (Gov't Resp. to Def.'s Mot. to Dismiss Indictment at 2) (Page ID #77). In April 2010, Norwood-Charlier entered into a plea agreement with the government and proffered information that led to Lively's prosecution: Norwood-Charlier admitted that he had photographed Lively performing oral sex on a child in April 2009 and that he had shared child pornography with Lively and Quackenbush. Id. at 3-4 (Page ID #78-79).

         In 2013, the government moved forward with prosecuting Lively, who at that time was living with Quackenbush in Nevada. Id. at 5 (Page ID #80). Lively and Quackenbush were both arrested and charged with various child-pornography offenses. Id. at 5-6 (Page ID #80-81).

         B. Procedural History

         On September 12, 2013, a grand jury in the Western District of Michigan indicted Lively for sexually exploiting a minor in violation of 18 U.S.C. §§ 2251(a), 2251(e), and 2256(2)(A). R. 1 (Indictment at 1-2) (Page ID #1-2). The indictment alleged that Lively had produced four images of himself performing oral sex on a minor "using materials that had been manufactured outside the State of Michigan, including but not limited to a Seagate hard drive manufactured in Thailand." Id. Lively pleaded not guilty. R. 9 (3/6/14 Criminal Minute Sheet) (Page ID #20).

         On May 31, 2014, Lively moved to dismiss the indictment for pre-indictment delay. R. 21 (Mot. to Dismiss Due to Pre-Indictment Delay) (Page ID #54). Lively argued that the four-year delay between Norwood-Charlier's arrest and Lively's indictment violated his Fifth Amendment right to due process. R. 22 (Br. in Support of Mot. to Dismiss Due to Pre-Indictment Delay at 3) (Page ID #57). That delay, Lively argued, was due to the government's negligence, and it prejudiced Lively because the lapse of time inhibited him from raising an effective insanity defense. Id. at 9-12 (Page ID #63-66).

         The district court denied Lively's motion to dismiss. R. 31 (8/13/13 Order) (Page ID #93). It held that the four-year delay did not prejudice Lively because his insanity claim was "speculative at best." Id. at 2 (Page ID #94). Moreover, the court held that Lively had failed to raise a valid Fifth Amendment claim because he had not shown that the government intentionally delayed prosecuting Lively. Id. at 3 (Page ID #95).

         Lively's jury trial began on January 27, 2015. R. 86 (Trial Tr.) (Page ID #552). Three parts of the government's case bear mention here:

         1. Lively's victim testified. R. 87 (Trial Tr. (Victim) at 215:18-20) (Page ID #766). Through the boy, the government introduced three images: Government Exhibits 12a, 13a, and 14a. Id. at 219:9-220:4 (Page ID #770-71). The boy testified that those three images depicted Lively sexually abusing him. Id. at 218:14-219:8 (Page ID #769-70). The prosecution then showed the boy three different images: Government Exhibits 12, 13, and 14. Id. at 220:22- 221:12 (Page ID #771-72). The boy confirmed that Government Exhibits 12, 13 and 14 depicted the same events as Government Exhibits 12a, 13a, and 14a, respectively. Id.

         2. The government introduced Norwood-Charlier's SanDisk memory card, together with Norwood-Charlier's Kodak camera, as one exhibit: Government Exhibit 11. R. 87 (Trial Tr. (Johnson) at 237:23-238:6) (Page ID #788-89). The district court admitted Government Exhibit 11 as a full exhibit; it did not give Lively's jury an instruction limiting the reasons for which they could consider the Kodak camera or the SanDisk memory card. Id.

         FBI forensic examiner Walker Sharp testified that he found Government Exhibits 12a, 13a, and 14a, and one additional image of Lively abusing the boy, Government Exhibit 15a, on the SanDisk memory card that was inside Norwood-Charlier's Kodak camera. R. 87 (Trial Tr. (Sharp) at 248:6-22, 251:5-14, 253:19-257:12, 265:9-18) (Page ID #799, 802, 804-08, 816).

         The SanDisk memory card bore a trade inscription: "Made in China." 6th Cir. R. 25-2 (Exs. to Gov't Letter Regarding Trial Exhibit).[1] The Kodak camera did not bear a trade inscription. Id. During Sharp's direct examination, the prosecution placed the SanDisk card on a projector so the jury could see a magnified image of it. R. 87 (Trial Tr. (Sharp) at 249:19- 250:10) (Page ID #800-01). One of the two government attorneys prosecuting Lively subsequently handed the SanDisk card to the jury so the jurors could view it themselves. Id. at 250:11-15 (Page ID #801). However, nobody-not the government, not Lively, not the district court-referenced the SanDisk memory card's trade inscription, or its country of origin, during the government's case-in-chief.

         3. The government also introduced into evidence Norwood-Charlier's Seagate hard drive. R. 87 (Trial Tr. (Zentz) at 292:5-294:7) (Page ID #843-45). The parties stipulated that the hard drive "was manufactured [in Thailand] and was shipped or transported in interstate or foreign commerce." R. 87 (Trial Tr. at 284:6-15) (Page ID #835). The prosecution read the parties' stipulation to the jury. Id. One of the government's experts, Matthew Zentz, corroborated this information; he testified that the Seagate hard drive was marked "Product of Thailand." R. 87 (Trial Tr. (Zentz) at 294:8-11) (Page ID #845). Zentz also testified that the Seagate hard drive contained multiple copies of four images of Lively sexually abusing the boy: Government Exhibits 12, 13, 14, and 15. Id. at 296:1-6, 297:22-302:1 (Page ID #847, 848-53). ...

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