United States v. Robert Brandon Bilus , 626 F. App'x 856 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12269
________________________
D.C. Docket No. 1:12-cr-00042-MP-GRJ-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT BRANDON BILUS,
Defendant – Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(September 15, 2015)
Before ED CARNES, Chief Judge, and ROSENBAUM, Circuit Judge, and
SMITH, ∗ District Judge.
∗
Honorable C. Lynwood Smith, Jr., United States District Judge for the Northern District
of Alabama, sitting by designation.
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SMITH, District Judge:
This is an appeal from convictions and sentences for receiving child
pornography in violation of 18 U.S.C. § 2252A(a)(2)(A), and possessing child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Those offenses and
several state charges arose out of the following events.
I. FACTS
The High Springs, Florida, Police Department received a 911 call from a
female resident at approximately 10:39 p.m. on Sunday, August 15, 2010. The
caller reported that a “suspicious” automobile bearing a University of Florida tag
and driven by a white male had circled the block in her “little neighborhood” at
least three times, and then stopped in a field behind her house. She feared that it
was not safe to exit her vehicle and walk with her children into their home. ECF
No. 28-2, at 2, 5.1
Officer Johnny Sheppard responded to the call. He had been “born and
raised” in High Springs and, thus, was familiar with the area and its high level of
drug and crime activity. ECF No. 150, at 3-4. Officer Sheppard observed an
1
“ECF” is an acronym formed from the initial letters of the name of a filing system that
allows parties to file and serve documents electronically (i.e., “Electronic Case Filing”).
Bluebook Rule 7.1.4 allows citation to page numbers generated by the ECF header. The
Bluebook: A Uniform System of Citation, at 21 (Columbia Law Review Ass’n et al. eds., 19th
ed. 2010).
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automobile matching the description received from dispatch sitting near the rear
parking lot of a church. He knew the congregation was not conducting worship
services at that time of night, and that an air-conditioning unit recently had been
stolen from the church. The suspect vehicle pulled away at a lawful rate of speed
when Officer Sheppard arrived on the scene, and he followed at a distance of
approximately one car length. When the automobile turned onto Northwest 225th
Terrace, the driver failed to give a turn signal. 2
Northwest 225th Terrace was not a frequently traveled roadway, because
only about three houses were located along the street. Officer Sheppard knew
most of the residents, and he had not previously observed the suspect’s automobile
in that area. Moreover, none of the residents on the street appeared to be expecting
2
Florida law provides that:
(1) No person may turn a vehicle from a direct course or move right or left
upon a highway unless and until such movement can be made with reasonable
safety, and then only after giving an appropriate signal in the manner hereinafter
provided, in the event any other vehicle may be affected by the movement.
(2) A signal of intention to turn right or left must be given continuously
during not less than the last 100 feet traveled by the vehicle before turning . . . .
....
(5) A violation of this section is a noncriminal traffic infraction,
punishable as a moving violation as provided in chapter 318.
Fla. Stat. § 316.155 (ellipses supplied).
3
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visitors, because no lights were on in any of the houses. Further, very quickly after
turning onto the street, the suspect’s vehicle began to turn around. Officer
Sheppard initiated a traffic stop at that point, due to the driver’s “failure to use a
turn signal and the totality of the suspicious activity, those two reasons.” ECF No.
150, at 19.
When Officer Sheppard approached the stopped vehicle, he observed a “very
young” black female in the front passenger seat wearing nothing but a t-shirt and
holding her hands over her crotch. Id. at 12-13. The driver — who turned out to
be the defendant, Robert Brandon Bilus — was sweating and appeared nervous.
The Incident Report subsequently filed by Officer Sheppard recorded that both
Bilus and his young passenger
acted suspicious and could not advise basic information. Both parties
knew the other person’s name and they gave different stories about
where they were going. The juvenile was half naked with just a shirt
on that covered her personal area. Post Miranda, the defendant
advised that he had just met the victim online and she told him she
was 16 YOA. He further advised that he picked the child up without
the knowledge or permission of the child’s parent. The child advised
that the defendant knew that she was at least 13 YOA, due to the
profile online that list[ed] her age. She also advised that she informed
him of this information, while talking to him online. Witness #1, the
guardian of the child[,] advised that the defendant did obtain
4
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permission to remove the child from the residence.[3] She also advised
that she has never met the defendant. . . .
ECF No. 28-3, at 1-2 (alterations, emphasis, and footnote supplied). Bilus was
arrested at the scene for the state misdemeanor offense of contributing to the
delinquency of a child. 4
Detective James Madsen, the Commander of the “North Florida Internet
Crimes Against Children Task Force,” learned of the arrest the following day and
obtained a warrant from a state court judge to search Bilus’s residence. The
affidavit executed in support of the warrant application stated that Madsen had
reason to believe that “a computer of unknown type and make [had been] used to
communicate [with] and [to] facilitate the arrangements to travel and to meet a
minor to facilitate unlawful contact[,] and that items used to perpetrate this act”
would be found at Bilus’s residence. ECF No. 30-2, at 1 (alterations supplied). 5 In
3
This appears to be a typographical error in the affidavit, because all other evidence
indicates that the guardian did not give defendant permission to remove the child from her
residence.
4
The Florida offense of contributing to the delinquency of a child occurs when any
person “[c]ommits any act which causes, tends to cause, encourages, or contributes to a child
becoming a delinquent or dependent child or a child in need of services.” Fla. Stat. §
827.04(1)(a) (alteration supplied).
5
The Florida statute defining the offense of Traveling to Meet a Minor reads as follows:
Any person who travels any distance either within this state, to this state,
or from this state by any means, who attempts to do so, or who causes another to
5
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support of those assertions, Madsen described the circumstances of the arrest,
including the fact that the twelve-year-old passenger stated that she and Bilus had
communicated over the internet earlier that day, 6 noted that “electronic devices are
do so or to attempt to do so for the purpose of engaging in any illegal act
described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in
other unlawful sexual conduct with a child or with another person believed by the
person to be a child after using a computer online service, Internet service, local
bulletin board service, or any other device capable of electronic data storage or
transmission to:
(a) Seduce, solicit, lure, or entice or attempt to seduce, solicit, lure,
or entice a child or another person believed by the person to be a child, to
engage in any illegal act described in chapter 794, chapter 800, or chapter
827, or to otherwise engage in other unlawful sexual conduct with a child;
or
(b) Solicit, lure, or entice or attempt to solicit, lure, or entice a
parent, legal guardian, or custodian of a child or a person believed to be a
parent, legal guardian, or custodian of a child to consent to the
participation of such child in any act described in chapter 794, chapter
800, or chapter 827, or to otherwise engage in any sexual conduct,
commits a felony of the second degree, punishable as provided in § 775.082, §
775.083, or § 775.084.
Fla. Stat. § 847.0135(4).
6
During the suppression hearing subsequently conducted in the district court, Madsen
additionally testified that, because Bilus did not have any equipment on his person or in his
automobile that would have enabled him to communicate with the victim in an internet chat
room, it was “more than likely that [his] communication [with the female victim] was done from
his residence.” ECF No. 150, at 54 (alterations supplied). The district court judge
acknowledged the possibility that Bilus could have conducted his chat with the victim in a public
location, such as a café with free wi-fi connections, but he concluded, nevertheless, that it was
“‘fairly probable’ that the chat occurred at the defendant’s residence. . . . Common sense
dictates that it is fairly probable that [Bilus] set up a furtive meeting with an underage girl at
10:40 p.m. in the privacy of his home rather than a public place.” ECF No. 35, at 16-17
(alterations supplied). See United States v. Perrine, 518 F.3d 1196, 1206 (10th Cir. 2008) (“The
6
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commonly used in connection with the exploitation of children,” and observed that
“child molesters also possess child pornography” as “a tool to be used to groom
victims (as in this case), record their crimes, and to allow them to relive and extend
their fantasies while the victim is not readily available.” Id. at 3.7 Based upon
such considerations, Madsen opined that “probable cause exists to believe that the
items requested to be searched for are evidence of the exploitation of children by
means of the possession of child pornography in violation of Florida Statutes and
are concealed in the residence.” Id. at 6.
The officers who executed the search warrant discovered thirty-seven files
depicting child pornography (seven of which were videos) on the hard drive of a
laptop computer located in Bilus’s bedroom. See, e.g., ECF No. 117 ¶ 13.
Bilus was indicted by a federal grand jury in the United States District Court
for the Northern District of Florida for one count of receiving child pornography in
observation that images of child pornography are likely to be hoarded by persons interested in
those materials in the privacy of their homes is supported by common sense and the cases.”)
(quoting United States v. Riccardi, 405 F.3d 852, 861 (10th Cir.2005)) (other citations omitted).
7
Madsen’s affidavit actually asserted that “the majority of child molesters also possess
child pornography” (emphasis supplied), but he acknowledged during his testimony at the
suppression hearing that such an assertion was erroneous, and that the actual statistic was
approximately 20 or 21 percent. See ECF No. 150, at 36. The discrepancy would affect the
weight that might be accorded the opinion, but not its admissibility.
7
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violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1), 8 and one count of
possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and
2252A(b)(2).9 Trial on those charges commenced on May 6, 2013, and a jury
returned verdicts of “guilty” on both counts the following day. Bilus subsequently
was sentenced to the custody of the Bureau of Prisons for concurrent terms of 168
months for the offense of receiving child pornography, and 120 months for
possession of child pornography. Bilus later was convicted in state court
proceedings for other offenses arising out of the August 15, 2010 traffic stop —
8
18 U.S.C. § 2252A(a)(2)(A) makes it a crime to “knowingly receive[] or distribute[] . . .
any child pornography that has been mailed, or using any means or facility of interstate or
foreign commerce shipped or transported in or affecting interstate or foreign commerce by any
means, including by computer” (alterations supplied). Section 2252A(b)(1) provides the penalty,
i.e., a fine and 5-20 years of imprisonment. 18 U.S.C. § 2252A(b)(1).
9
18 U.S.C. §§ 2252A(a)(5)(B) makes it a crime to
knowingly possess[], or knowingly access[] with intent to view, any book,
magazine, periodical, film, videotape, computer disk, or any other material that
contains an image of child pornography that has been mailed, or shipped or
transported using any means or facility of interstate or foreign commerce or in or
affecting interstate or foreign commerce by any means, including by computer, or
that was produced using materials that have been mailed, or shipped or
transported in or affecting interstate or foreign commerce by any means, including
by computer. [Alterations supplied.].
Section 2252A(b)(2) provides the penalty, i.e., a fine and a maximum of 10 years of
imprisonment. 18 U.S.C. § 2252A(b)(2).
8
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i.e., interference with custody, lewd and lascivious battery, 10 and traveling to meet
a minor11 — and was sentenced to concurrent terms of five years for the first
offense, and fourteen years for the latter offenses.
II. MOTION TO SUPPRESS EVIDENCE OF TRAFFIC STOP
AND SEARCH WARRANT
Bilus filed pretrial motions to suppress evidence obtained during his vehicle
stop, and to invalidate the search warrant. Both motions were denied following an
evidentiary hearing. An appellate court reviews a district court’s findings of fact
on denial of a motion to suppress evidence for clear error, and the district court’s
application of law to the facts de novo. United States v. Tate, 586 F.3d 936, 942
(11th Cir. 2009). The issue of whether an affidavit executed in support of a search
warrant established probable cause is reviewed de novo. United States v. Mathis,
767 F.3d 1264, 1275 (11th Cir. 2014).
The district court found that the traffic stop was supported by Bilus’s failure
to use a turn signal and the “totality of the circumstances,” which included the
following considerations:
10
A person commits “lewd and lascivious battery” under Florida law by “[e]ngaging in
sexual activity with a person 12 years of age or older but less than 16 years of age.” Fla. Stat. §
800.04(4)(a)(1) (alteration supplied). “Sexual activity” is defined as “the oral, anal, or vaginal
penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of
another by any other object.” Fla. Stat. § 800.04(1)(a).
11
See supra note 6.
9
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Here, the officer testified that he knew the area to be a high
crime area, with narcotics sales, shootings, and burglaries including
one involving a church near the field where the defendant stopped.
He also was told of the car’s suspicious driving pattern: circling
(multiple times) a neighborhood where the officer knew that the car
did not belong to any of the residents; then stopping for a while in a
field near an empty church at 10:40 p.m.; and then leaving the area
without visiting any of the residences on the street. Also, the officer
observed the car turn onto a small road the officer believed to be a
dead-end, and testified that he knew the car was not associated with
any of the residents of the street. The car then proceeded to suddenly
turn around. Taken together, these circumstances provide more than a
reasonable, articulable suspicion based on objective facts that the car’s
owner was engaged in, or was about to engage in, criminal activity.
An investigative stop under such circumstances does not violate the
Fourth Amendment.
ECF No. 35, at 10-11. The district court also held that the search warrant had been
“properly applied for and issued,” id. at 11, based upon the following findings: the
warrant affidavit contained sufficient facts to support each element of the state
offense of traveling to meet a minor; the search for child pornography was
sufficiently related to the charged state offense; any errors or misstatements in the
warrant affidavit were immaterial; 12 there was a sufficient connection between the
12
As the district court observed in its order addressing Bilus’s motions to suppress, the
defendant did
point out one clear error in the Search Warrant affidavit, which the detective
admitted in his testimony. The Affidavit stated that “Robert Brandon Bilus was
charged with unlawful contact with a minor a misdemeanor level charge in
violation of Florida Statutes.” This statement is misleading [because], as
previously noted, Robert Brandon Bilus at the time was charged with the
10
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state offense alleged in the warrant affidavit and Bilus’s residence; 13 and, the
warrant application was not overbroad. Id. at 12-17.
After de novo review, the denial of defendant’s motion to suppress will be
affirmed for the reasons stated by the district court.
III. ADMISSION OF EVIDENCE RELATED TO
APPELLANT’S STATE COURT CHARGES
Bilus filed a motion in limine to exclude evidence of other crimes, wrongs,
or acts, see Fed. R. Evid. 404(b), 14 and asked the district court to prevent the
misdemeanor offense of Contributing to the Delinquency of a Child (Minor). The
Court finds that while this is an error, excluding this statement would not affect
whether probable cause was properly found by the state court judge. Again,
whether or not “unlawful contact” actually occurred is not relevant to whether
defendant traveled for the purpose of engaging in such contact. Thus, even if the
affidavit had correctly listed the crime as contributing to the delinquency of a
minor (which does not contain the term “unlawful contact” in it), sufficient other
facts in the affidavit support the claim that he traveled with the purpose of
engaging in sexual contact with the child. Also, while the affidavit does not
artfully cite to the various studies showing the links between child pornography
and child molestation, Congress and the Courts have consistently found that such
links exist, as noted above. The Court finds, therefore, that any misstatements
relating to these studies were not such that probable cause would be lacking if
they were correctly made.
ECF No. 35, at 15-16 (record citations omitted, alteration supplied).
13
In response to the argument of Bilus’s attorney that the search warrant affidavit
provided “no basis for the conclusion” that the computer located at the defendant’s residence was
used to communicate with a minor because he “might have participated in the online chat
admitted to by the victim at a coffee house or internet caf,” the district court held that
“[c]ommon sense dictates that it is fairly probable that defendant set up a furtive meeting with an
underage girl at 10:40 p.m. in the privacy of his home rather than a public place.” Id. at 16-17
(alteration supplied).
11
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prosecution “from referencing in any fashion, evidence or facts related to an
uncharged allegation of traveling to meet a minor, allegedly occurring on August
15, 2010.” ECF No. 35, at 1. 15 That motion was denied by oral order during the
pretrial conference. Bilus’s attorney then inquired whether there would be a limit
on what “evidence of the issues out of High Springs that the government is going
to be permitted to go into.” ECF No. 151, at 18. The district judge responded:
Well, I don’t know, because as I understand it and what I’m
ruling is that you have got to keep these things. They are connected
and you have to tell one to explain the other and how much that takes.
How much evidence, I don’t know. If you start doing it, if you object,
I’ll rule.
Id.
During opening statements, the prosecutor described the events of August
15, 2010, including the traffic stop and discovery of Bilus in the car with the
virtually naked twelve-year-old girl. The prosecutor also stated that Bilus
acknowledged conversing with the victim online, and driving from Gainesville to
14
Federal Rule of Evidence 404(b) addresses the subject of evidence of crimes, wrongs,
or acts other than (or not part of) the crime(s) charged in the indictment for which the defendant
is standing trial. The pertinent portions of the rule state that such evidence “is not admissible to
prove a person’s character in order to show that on a particular occasion the person acted in
accordance with the character,” but add that such evidence “may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.”
15
Bilus’s reference to the allegation being “uncharged” must refer to the fact that he was
not charged with that offense in the federal indictment. Instead, that offense was the subject of a
state court charge. See ECF No. 117, at 13.
12
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High Springs to meet her in person. 16 Then he described how Detective Madsen
used the information gathered during the traffic stop to obtain a search warrant for
Bilus’s residence.
Detective Madsen testified about how he learned of the traffic stop from the
High Springs Police Department and why he decided to obtain a search warrant.
He stated that the process of obtaining a warrant in this case was “rapid” and
“expedited,” because Bilus had been “booked in on a misdemeanor.” ECF No.
153, at 33. Bilus’s attorney moved for a mistrial based upon Madsen’s reference to
Bilus’s arrest for a state misdemeanor, but the district court denied the motion.
Bilus’s attorney asked the prosecutor if he intended “to go any further down that
road,” and the prosecutor responded, “No.” Id. at 33-34.
On cross-examination, Bilus’s attorney asked Madsen to identify his resume,
and Madsen responded: “This is what I wrote up to comply with a state order. I
don’t have to but it is something I filed for the state case at your request.” ECF
No. 154, at 28 (emphasis supplied). Bilus’s attorney moved for a mistrial based
upon Madsen’s reference to the state case, but the motion was denied.
16
The driving distance between Gainesville and High Springs, Florida, appears to be
approximately 23 miles. See, e.g., http://www.mapquest.com/#a42a5503fd2cfefd29f43c6d (last
visited Aug. 18, 2015).
13
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The district court’s evidentiary rulings are reviewed for “clear abuse of
discretion.” United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003). As this
Court observed in United States v. McLean, 138 F.3d 1398 (11th Cir. 1998),
Federal Rule of Evidence 404(b) provides that “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith.” However,
[e]vidence of criminal activity other than the charged
offense is not extrinsic under Rule 404(b) if it is (1) an
uncharged offense which arose out of the same
transaction or series of transactions as the charged
offense, (2) necessary to complete the story of the crime,
or (3) inextricably intertwined with the evidence
regarding the charged offense.
United States v. Ramsdale, 61 F.3d 825, 829 (11th Cir. 1995).
“Evidence, not part of the crime charged but pertaining to the chain of
events explaining the context, motive and set-up of the crime, is
properly admitted if linked in time and circumstances with the
charged crime, or forms an integral and natural part of an account of
the crime, or is necessary to complete the story of the crime for the
jury.” United States v. Williford, 764 F.2d 1493, 1499 (11th Cir.
1985).
McLean, 138 F.3d at 1403 (alterations in original).
Bilus argues that, because he did not challenge the lawfulness of the search
of his residence at trial — as distinguished from the objections he lodged in pre-
trial motions — the government had no reason to mention the state charges or the
facts leading to them. That argument is not persuasive. Evidence about the events
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of August 15, 2010, and the state charges growing out of those events, is
inextricably intertwined with the federal charges of receiving and possessing child
pornography. Bilus used the same computer to receive and view child
pornography as he did to contact the twelve-year-old victim and arrange their
meeting in High Springs. The computer recovered from Bilus’s residence was still
on when it was seized, and it showed that Bilus was logged into the same online
teen chat room that he had used to communicate with the twelve-year-old victim.
Bilus had logged in to the chat room under the username “Robert,” and a
photograph of him was depicted next to the username. ECF No. 153, at 40-43.
That evidence demonstrated two important points that the government had to
prove: i.e., that the computer seized by agents belonged to Bilus; and, that he had
used it. In short, Bilus’s arrest on the night of August 15, 2010, on Northwest
225th Terrace in High Springs, Florida, is part of the story leading to the search of
his Gainesville residence and the seizure of the laptop computer containing child
pornography. The linkage between the state and federal offenses is clear, and the
district court did not abuse its discretion in concluding that the evidence was
inextricably intertwined. Moreover, the district court did not err in failing to make
more detailed findings about whether the prejudicial effect of the evidence was
15
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substantially outweighed by its probative value. See Fed. R. Evid. 403.17 Given
the inextricable connections between the offenses, there is no reason to believe that
Bilus suffered any undue prejudice, and the district court adequately articulated its
findings. 18
IV. ADMISSION OF ALLEGEDLY PREJUDICIAL
IMAGES AND VIDEOS
During trial, the government offered eleven images and five videos removed
from the hard drive of Bilus’s computer to establish that he had received and
possessed child pornography. Even though all five of the videos were admitted
into evidence, only five-second clips from two of them were played for the jury.
Bilus objected to the admission of that evidence, arguing that its cumulative
probative value was substantially outweighed by the risk of unfair prejudice under
Federal Rule of Evidence 403.
Bilus’s attorney also questioned whether “two or three” of the eleven images
offered by the government actually constituted child pornography, but he
17
“The court may exclude relevant evidence if its porbative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Fed. R. Evid. 403.
18
Even if the evidence about Bilus’s arrest was not inextricably intertwined with the
evidence supporting his federal charges, it likely would have been admissible under Federal Rule
of Evidence 404(b), because it was probative of the issues of intent, identity, absence of mistake,
lack of accident, and motive. See Fed. R. Evid. 404(b).
16
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acknowledged that the other eight or nine were pornographic. ECF No. 153, at 48.
The attorney suggested that he would not have objected if only “three or five” of
the images had been shown to the jury, due to the government’s need to prove its
case for receipt and possession of child pornography, but argued that showing all
eleven images and any of the videos constituted prejudicial error. Id. The district
court overruled the objections, but did not view the images or videos before doing
so.
Bilus contends, based upon the Third Circuit’s decision in United States v.
Cunningham, 694 F.3d 372 (3d Cir. 2012), that the district court’s admission of the
eleven images and two, five-second video clips without first viewing them was an
abuse of discretion. 19 The district court in Cunningham allowed the prosecutor to
play for the jury a total of two minutes and thirteen seconds of excerpts from seven
videos that had been seized from the defendant’s computer. The videos depicted
acts of manual and oral stimulation of male and female genitals, as well as vaginal
and anal intercourse, all involving minors. Two of the videos depicted bondage
and violent sexual acts. Id. at 380-82 and n.11. The Third Circuit found that,
“speaking generally, a district court should personally examine challenged
19
See Dodds, 347 F.3d at 897 (holding that the district court’s evidentiary rulings are
reviewed for an abuse of discretion).
17
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evidence before deciding to admit it under Rule 403,” but declined to adopt a
bright-line rule requiring such an examination in all cases. Id. at 386-87. Even so,
the Third Circuit held that, “under the circumstances of this case, the [district
court] abused its discretion by admitting the videos without first viewing them.”
Id. at 383 (emphasis and alteration supplied). Because of that abuse of discretion,
the district court’s “underlying Rule 403 determination [was] not entitled to the full
range of deference that [the Third Circuit] would normally give to it on appeal.” Id.
at 388 (alterations supplied). The Cunningham Court went on to hold that the “law
of diminishing marginal returns” reduced the probative value of each video clip
successively introduced after the requisite elements of the offense had been
established. 20 The Third Circuit concluded that the “violent and sadistic character
20
Specifically, the Third Circuit observed that:
Even though the two sets of videos were probative, . . . , the law of
diminishing marginal returns still operates. The probative value of each clip was
reduced by the existence of the clips before it. Once one video excerpt from each
of the two videos was shown, the fact being proven — i.e., that the person
distributing, receiving, and possessing that pornography would know that it
contained images of real minors engaging in sexually explicit activity — may
well have been established. As a result, after one excerpt from each video was
displayed, the probative value of the remaining excerpts became diminished
because knowledge of distribution, receipt, and possession had already been
established in some degree by the prior video excerpts. Thus, any of the three
excerpts from the first video would have diminished probative value if one or two
of the other video excerpts from the first video had already been shown.
Likewise, any of the four excerpts from the second video would have diminished
probative value if one or two of the other video excerpts from the second video
had already been shown.
18
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[of the video clips depicting bondage and violence] likely created ‘disgust and
antagonism’ toward Cunningham which risked ‘overwhelming prejudice’ toward
him.” Id. at 390-91 (quoting United States v. Harvey, 991 F.2d 981, 996 (2d Cir.
1993)) (alteration supplied). For such reasons, the Third Circuit held that the
district court’s admission of the bondage clips was an abuse of its discretion and
The question in the end, of course, is whether the probative value of the
clips shown was substantially outweighed by the danger of unfair prejudice or the
needless presentation of cumulative evidence. See Fed. R. Evid. 403. As Rule
403 clarifies, a party is not protected from all prejudice — only unfair prejudice.
See Fed. R. Evid. 403; see United States v. Bergrin, 682 F.3d 261, 279 (3d Cir.
2012) (“It must always be remembered that unfair prejudice is what Rule 403 is
meant to guard against. . . .”).
Here, the aggregate risk of unfair prejudice was tremendous. Although the
videos in question were not presented to this Court, the detailed descriptions we
have received show that at least two of them should clearly have been excluded
under Rule 403. Those two video excerpts, part of the second set of video clips,
portray bondage or actual violence. Although all of the video excerpts are
described as portraying deeply disturbing images, the descriptions of the depraved
and violent sexual acts in Excerpt 1 and Excerpt 3 from the second video, . . . let
alone the actual video images, are enough to “generate even more intense disgust”
and cause us to conclude that the videos themselves surely “outweigh[ ] any
probative value they might have” as to the charges of knowingly distributing,
receiving, and possessing child pornography. [United States v. ]Curtin, 489 F.3d
[935,] 964 [(9th Cir. 2007)] (Kleinfeld, J., concurring); see [United States v.]
Loughry, 660 F.3d [965,] 974[ (7th Cir. 2011)] (citing Judge Kleinfeld’s
concurrence in Curtin for the proposition that “video excerpts shown to the jury . .
. [of] men raping and ejaculating in the genitals of prepubescent girls . . . have a
strong tendency to produce intense disgust”).
Cunningham, 694 F.3d at 389-90 (last alteration in original, other alterations supplied, footnote
omitted).
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reversed the conviction. Cunningham, 694 F.3d at 392-93. Even so, the Court was
careful to note that
a district court “is not required to scrub the trial clean of all evidence
that may have an emotional impact.” [United States v.] Ganoe, 538
F.3d [1117,] 1124 [(11th Cir. 2008)] (citation and internal quotation
marks omitted). Thus, we do not hold that the admission here of
video excerpts or other images was per se improper. Indeed, courts
are in near-uniform agreement that the admission of child
pornography images or videos is appropriate, even where the
defendant has stipulated, or offered to stipulate, that those images or
videos contained child pornography. See, e.g., United States v.
Polouizzi, 564 F.3d 142, 153 (2d Cir. 2009); United States v. Schene,
543 F.3d 627, 643 (10th Cir. 2008); Ganoe, 538 F.3d at 1123-24;
United States v. Morales-Aldahondo, 524 F.3d 115, 120 (1st Cir.
2008); United States v. Sewell, 457 F.3d 841, 844 (8th Cir. 2006);
Dodds, 347 F.3d at 898-99. We also decline to adopt a bright-line
rule on the number of video excerpts that can be shown or on the
maximum length of time that video excerpts can last.
Cunningham, 694 F.3d at 391 (alterations supplied).
Of course, Cunningham is only persuasive authority. Moreover, that opinion
explicitly declined to establish a bright-line rule that a district court must view all
pornography images and/or videos before publishing them to the jury. The
decision also is distinguishable. The prosecution in this case played a total of only
ten seconds of clips from two of the five videos. There were no duplicate clips
from either video, as in Cunningham, and the total length of clips played here was
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far less than in that case. Finally, none of the video clips shown to the jury in the
present case involved acts of bondage or violent sexual acts.
Rather than focusing on distinguishable, non-binding authority, it is more
helpful to examine Eleventh Circuit precedent. In United States v. Alfaro-
Moncada, 607 F.3d 720 (11th Cir. 2010), this Court held that the trial court did not
abuse its discretion in allowing the jury to view five still images of child
pornography found on DVDs seized from the defendant, even though the
defendant had stipulated that the DVDs contained child pornography. Id. at 734.
Admission of the five still images from the DVDs served valid
purposes. See Old Chief v. United States, 519 U.S. 172, 190, 117 S.
Ct. 644, 655, 136 L. Ed. 2d 574 (1997). Those images proved that the
DVDs actually contained child pornography, although it is true that
Alfaro-Moncada stipulated to that fact. See id. at 186–87, 117 S. Ct. at
653 (“[The] standard rule [is] that the prosecution is entitled to prove
its case by evidence of its own choice, or, more exactly, that a
criminal defendant may not stipulate or admit his way out of the full
evidentiary force of the case as the Government chooses to present
it.”). They also tended to show that Alfaro-Moncada knew he was in
possession of child pornography, a fact that he did not stipulate. Even
if showing the images to the jury created some risk of injecting
emotions into the jury’s decision-making, see id. at 180, 117 S. Ct. at
650, it was not an abuse of discretion for the district court to decide
that the risk did not substantially outweigh the still images’ probative
value. That is especially true since the jury was only shown a small
number of the images on the DVDs — only 5 out of 4,650. See
Dodds, 347 F.3d at 899 (finding no abuse of discretion where images
had multiple probative purposes, the district court took precautions to
prevent unfair prejudice, and only 66 of 3,400 images were shown to
the jury).
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Alfaro-Moncada, 607 F.3d at 734 (alterations in original, emphasis supplied).
The images and videos shown to the jury in this case were probative of
Bilus’s receipt and possession of child pornography and, therefore, necessary for
the prosecution to prove its case. The admission of eleven images and only ten
seconds of video clips depicting pornographic images of minors did not cause
unfair prejudice. Any prejudice that may have resulted from the publication of the
images was outweighed by the probative value of the images to the prosecution’s
case.
We also specifically decline to adopt a requirement that the district court
must view the allegedly prejudicial images before allowing them to be shown to a
jury. Moreover, there is no indication that the district court lacked sufficient
information about what the images portrayed to make a decision about their
probative value and potential to cause undue prejudice.
V. ADMISSION OF TESTIMONY ELICITED ON CROSS-
EXAMINATION OF THE GOVERNMENT’S EXPERT WITNESS
During trial, and in response to a question posed by Bilus’s attorney on
cross-examination, Detective Madsen testified that Bilus’s computer contained
evidence indicating he had engaged in online chats about viewing child
pornography. Bilus’s attorney moved to strike the testimony pursuant to Federal
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Rule of Criminal Procedure 16, because it had not been disclosed prior to trial. 21
The motion was denied because Madsen’s testimony was elicited on cross-
examination, and not during the government’s case-in-chief. See Fed. R. Crim. P.
16(a)(1)(G) (“At the defendant’s request, the government must give to the
defendant a written summary of any testimony that the government intends to use
under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-
chief at trial.”) (emphasis supplied). Bilus also was not entitled to notice of
Madsen’s testimony or report under Rule 16(a)(1)(F),22 because “forensic
21
During the second day of trial, Detective Madsen, who was on the stand as the
government’s expert witness, was asked by Bilus’s attorney whether there was a known source
for any of the images found on Bilus’s computer. The attorney apparently expected the answer
to be “no,” but Madsen testified that he had recently found a “lead” on the potential sources of
the images because of “communication logs that were more recently found.” Bilus’s attorney
objected, because the communication logs were not addressed in Madsen’s expert report, and
had not otherwise been disclosed to the defense. Madsen testified that, during his preparation for
trial, he had located on the hard drive of Bilus’s computer “a lot of chat files that [he] previously
had either not found or due to the amount, overlooked.” ECF 154, at 38 (alteration supplied).
Based upon his review of those recently discovered files, Madsen testified that there was
evidence that Bilus had engaged in a chat about viewing child pornography. Madsen also
produced a six-page supplemental expert report addressing that material, but the prosecution
acknowledged never having disclosed the supplemental report to the defense prior to trial. The
prosecution did, however, provide Bilus with the opportunity to have Bilus’s laptop examined by
a forensic expert. Bilus took advantage of that opportunity, but his expert’s examination did not
reveal the files addressed in Madsen’s supplemental report. See id. at 38-68.
22
The relevant portion of Federal Rule of Criminal Procedure 16 provides that:
Upon a defendant’s request, the government must permit a defendant to
inspect and to copy or photograph the results or reports of any physical or mental
examination and of any scientific test or experiment if:
(i) the item is within the government’s possession, custody, or control;
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examination of a computer does not constitute a scientific test or experiment.” ECF
No. 53, at 3. Instead, the report was “simply a report prepared for trial
preparation,” and was exempted from disclosure pursuant to Rule 16(a)(2). Id.23
Finally, the trial court held that considerations of prejudice and fundamental
fairness did not require disclosure of the report because
the hard drive which contained the chat logs was made available to
defendant’s experts on multiple occasions, and they had the
opportunity to discover the chat logs. Defendant complains of
prejudice because he would not have structured his defense in the
manner that he did had he known of the evidence of chats discussing
child pornography. Defendant had multiple chances to have his
experts conduct forensic analyses of the computer. He does not have
the right to have the government’s theory of the case handed to him.
Any prejudice he suffered was from his failure to check the veracity
of his assertion that there were no records of any chats.
(ii) the attorney for the government knows — or through due diligence
could know — that the item exists; and
(iii) the item is material to preparing the defense or the government
intends to use the item in its case-in-chief at trial.
Fed. R. Crim. P. 16(a)(1)(F) (emphasis supplied).
23
The relevant portion of Federal Rule of Criminal Procedure 16 provides that:
Except as permitted by Rule 16(a)(1)(A)-(D), (F), and (G), this rule does
not authorize the discovery or inspection of reports, memoranda, or other internal
government documents made by an attorney for the government or other
government agent in connection with investigating or prosecuting the case. Nor
does this rule authorize the discovery or inspection of statements made by
prospective government witnesses except as provided in 18 U.S.C. § 3500.
Fed. R. Crim. P. 16(a)(2).
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ECF No. 53, at 5.
Bilus now asserts that the denial of his motion to strike was an abuse of the
trial court’s discretion. See Dodds, 347 F.3d at 897 (holding that the district
court’s evidentiary rulings are reviewed for an abuse of discretion). That argument
is not persuasive, and the district court’s denial of the motion to strike will be
affirmed for the reasons stated by that court.
VI. MOTIONS FOR JUDGMENT OF ACQUITTAL
Bilus filed motions for judgment of acquittal at the conclusion of the
government’s case-in-chief, and at the end of all of the evidence, but both motions
were denied. Bilus also filed post-trial motions for judgment of acquittal, for a
new trial, and for release from custody pending sentencing, but all motions were
denied after a hearing.
On appeal, however, the government concedes that Bilus’s conviction for
the offense of possession of child pornography alleged in Count Two should be
vacated because, under the facts of this case, that crime is a lesser-included offense
of the crime of receiving child pornography alleged in Count One. See Appellee’s
Brief, at 50 (citing United States v. Bobb, 577 F.3d 1366, 1374 (11th Cir. 2009)
(holding, on the basis of the plain text of the statute and relevant legislative history,
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that there was no “clear indication” of a Congressional intent “to impose
multiplicitous punishment for ‘receipt’ and ‘possession’ of child pornography”)).
Accordingly, the district court’s denial of defendant’s motion for judgment of
acquittal will be reversed as to Count Two, and the case remanded with directions
for the district court to vacate the conviction and sentence for the offense of
possession of child pornography. Thus, the discussion in this Part of the opinion
applies only to the offense of conviction alleged in Count One.
The district court’s denial of a motion for judgment of acquittal based upon
insufficiency of the evidence is reviewed de novo, but the evidence is viewed in the
light most favorable to the government. Dodds, 347 F.3d at 900. All reasonable
inferences should be drawn in favor of the jury’s verdict. United States v. Westry,
524 F.3d 1198, 1210 (11th Cir. 2008). The conviction will not be overturned
“‘unless no rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” United States v. Wright, 392 F.3d 1269, 1273
(11th Cir. 2004) (quoting United States v. Christo, 129 F.3d 578, 579 (11th Cir.
1997)); see also, e.g., United States v. Ward, 197 F.3d 1076, 1079 (11th Cir. 1999)
(holding that, when reviewing the denial of a motion for judgment of acquittal on
appeal, the Court “must ascertain whether a reasonable jury could have found the
defendant guilty beyond a reasonable doubt”) (citations omitted).
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The statute upon which Count One was based makes it a federal offense for
anyone to knowingly receive child pornography that has been mailed or
transported in interstate or foreign commerce “by any means, including by
computer.” 18 U.S.C. § 2252A(a)(2)(A).24
A. Receipt
“A person ‘knowingly receives’ child pornography under 18 U.S.C. §
2252A(a)(2) when he intentionally views, acquires, or accepts child pornography
on a computer from an outside source.” United States v. Pruitt, 638 F.3d 763, 766
(11th Cir. 2011).
Under this statute’s “knowingly receives” element, an
intentional viewer of child-pornography images sent to his computer
may be convicted whether or not, for example, he acts to save the
images to a hard drive, to edit them, or otherwise to exert more
control over them. Cf. United States v. Romm, 455 F.3d 990, 998 (9th
Cir. 2006) (finding sufficient for “receiv[ing]” under Section 2252A
that “Romm exercised dominion and control over the images in his
cache by enlarging them on his screen, and saving them there for five
minutes before deleting them”). Evidence that a person has sought
out — searched for — child pornography on the internet and has a
computer containing child-pornography images — whether in the hard
drive, cache, or unallocated spaces — can count as circumstantial
evidence that a person has “knowingly receive[d]” child pornography.
24
To be precise, the statute states that “[a]ny person who . . . knowingly receives or
distributes . . . any child pornography that has been mailed, or using any means or facility of
interstate or foreign commerce shipped or transported in or affecting interstate or foreign
commerce by any means, including by computer,” shall be guilty of a federal offense. 18 U.S.C.
§ 2252A(a)(2)(A) (alteration and ellipses supplied).
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Pruitt, 638 F.3d at 766 (alterations in original). Bilus argues that this element was
not established because there was no evidence that he actually viewed the
pornography found on his computer. Significantly, however, the case law does not
make actual viewing of the images a strict requirement. Pruitt clearly states that
the “receipt” element can be satisfied by “view[ing], acquir[ing], or accept[ing]”
child pornography. Id. (alterations and emphasis supplied). The use of the
disjunctive conjunction “or” indicates that any one of those actions will suffice.
And in that regard, a reasonable jury could have concluded, beyond a reasonable
doubt, that there was at least circumstantial evidence that Bilus acquired or
accepted child pornography on his computer, even if he did not actually view it.
Detective Madsen testified that there was evidence indicating that the files
containing pornographic images had been accessed after they were placed on
Bilus’s computer. The images also had been saved on the computer in folders
located within a parent directory entitled “Bobby.” ECF No. 153, at 71, 73. One
of those folders, entitled “my received files,” contained several files that included
the term “PTHC,” which stands for “preteen hard core” and is a term commonly
used to search the internet for child pornography. Id. at 75. A forensic
examination revealed that search terms like “preteen XXX,” “teen XXX,” and
“casualteensex” had been entered into the computer. Id. at 85. Finally, Bilus had
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engaged in an online chat with another person, both before and after one of the
files was accessed. Madsen testified that “it was less than likely that someone
would not view whatever it is they are doing online, especially when they are
talking about it.” ECF No. 154, at 43. 25
B. Interstate Commerce
The government asserts that the interstate commerce element was satisfied
by evidence that the pornographic images found on Bilus’s computer originated
from the internet, as well as evidence that the computer’s hard drive was
manufactured in Thailand. Bilus does not dispute that an internet origin would
satisfy the interstate commerce requirement, nor could he, because it is clearly
established that “[t]he internet is an instrumentality of interstate commerce.”
United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004) (citing United
States v. Pipkins, 378 F.3d 1281, 1295 (11th Cir. 2004); United States v. Panfil,
338 F.3d 1299, 1300 (11th Cir. 2003)) (alteration supplied). Instead, Bilus asserts
25
The record did contain some contradictory evidence. For example, Detective Madsen
testified that the creation time, last written time, and last accessed time for all of the files in
evidence were within seconds of each other, indicating that the files could have been placed on
the computer, but not viewed. He acknowledged that his expert report did not contain definitive
forensic proof that the files had been viewed. Madsen also testified that the last accessed date
would not necessarily coincide with the last viewed date in all instances, because programs like a
virus scan can also “access” the computer, causing the last accessed date to reset. Even so, a
reasonable jury could have disregarded that evidence, and found the other evidence sufficient to
support Bilus’s guilt beyond a reasonable doubt.
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that “[t]he evidence presented at trial regarding interstate commerce was
speculative, contradictory and misleading.” Appellant’s Brief, at 58 (alteration
supplied). The record does not support that assertion.
Detective Madsen testified that the pornographic files found on the hard
drive of Bilus’s laptop were downloaded from the internet, but when stating his
opinion he used qualifying language like “It is my belief that it was Yahoo
Messenger,” and “Based on the evidence that I had, I would say that they were
received from the Internet.” ECF No. 153, at 78, 80 (emphasis supplied). Bilus
contends that such phraseology indicates that Madsen’s opinion was speculative.
We do not agree. Even though the manner in which Madsen stated his opinions
leaves something to be desired, his qualified statements were not the only bases for
his opinions. Madsen further explained his conclusion about Bilus’s use of “Yahoo
Messenger” by stating that he had reviewed chats located on the hard drive of
Bilus’s computer. He explained his conclusion about the internet origin of the
pornographic images by stating that:
If you receive a file transfer through, whether it is Yahoo
Messenger or Skype, and you select to save a file, it creates a record
in a systems folder in a DAT file. That location, that does not happen.
If you move it from one external device to your hard drive to the
desktop, to a folder, that record is not created. It is created if you hit
save as. So in order to minimize that on an external device or flash
drive, you would have to, instead of dragging, moving, or copying,
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you would have to actually open it and then choose to save as in a
new location, instead of just dragging and dropping it.
Id. at 80. He also stated that other external devices had been located at Bilus’s
home.
Detective Madsen acknowledged that it is not always possible to
differentiate between intentional searches for child pornography, and searches in
which an individual accidentally types in an internet search term that generates
child pornography. Even so, there was other evidence indicating that the searches
conducted by Bilus were intentional, including the repeated nature of some of the
searches, his act of storing search results on his computer in folders with his name
in the titles, and the use of commonly known search terms to locate child
pornography.
A reasonable jury should be entitled to rely upon the opinion of the
government’s expert witness that the files were downloaded from the internet,
regardless of the words used by the expert to express his opinion. A reasonable
jury also is entitled to afford more weight to some aspects of an expert’s testimony
than to others.
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For all these reasons, the trial court’s denial of Bilus’s motions for judgment
of acquittal will be affirmed with regard to the offense of receipt of child
pornography alleged in Count One of the indictment.
VII. SENTENCING
Following two days of sentencing hearings, Bilus was committed to the
custody of the Bureau of Prisons for concurrent terms of 168 months for receipt of
child pornography, and 120 months for possession of child pornography. As
previously noted, the case will be remanded with directions for the district court to
vacate the conviction and sentence for the latter offense. In this section, we
discuss Bilus’s contention that his sentence for the offense of receipt of child
pornography was both procedurally and substantively unreasonable.
The Presentence Investigation Report imposed a Base Offense Level of 22
for the offense of receipt of child pornography in accordance with United States
Sentencing Guideline (“Guideline”) § 2G2.2(a)(2). Two levels were deducted in
accordance with Guideline § 2G2.2(b)(1), because the defendant’s conduct was
limited to the receipt or solicitation of material involving the sexual exploitation of
minors, and there was no evidence that the defendant intended to traffic in or to
distribute such material. The adjusted base offense level of 20 then was enhanced
by the following specific offense characteristics: 2 levels were added in
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accordance with Guideline § 2G2.2(b)(2), because the material possessed by Bilus
involved minors who had not attained the age of 12 years; 5 levels were added in
accordance with § 2G2.2(b)(5), because there was evidence of a pattern of activity
involving the sexual abuse or exploitation of minors; 2 levels were added in
accordance with § 2G2.2(b)(6), because the offense involved the use of a
computer, or an interactive computer service for the possession, transmission, or
receipt of the pornographic material, or for accessing the material with the intent to
view it; and, 4 levels were added in accordance with § 2G2.2(b)(7)(C), because the
offense involved more than 300, but fewer than 600 images.26 Thus, the total
offense level for purposes of computing the defendant’s sentence under the
Sentencing Guidelines was 33: i.e., 22 – 2 + 2 + 5 + 2 + 4 = 33. Bilus’s criminal
history score was 1, 27 and his criminal history category accordingly was a Roman
26
USSG § 2G2.2(b)(7)(C) requires the addition of 4 levels “[i]f the offense involved . . .
at least 300 images, but fewer than 600 [images]” (alterations supplied). Application Note
4(B)(ii) of the Commentary to USSG § 2G2.2 provides that, for the purpose of determining the
number of images under subsection (b)(7), “[e]ach video, video-clip, movie, or similar visual
depiction shall be considered to have 75 images” (alteration supplied). See also ECF No. 117
(Presentence Investigation Report) ¶ 31, at 12 (“The defendant possessed 30 images of child
pornography and 7 videos containing child pornography. Each video is counted as 75 images,
therefore the defendant is held accountable for 555 images.”).
27
The only convictions on Bilus’s record were those November 7, 2013 state court
convictions for the offenses growing out of the August 15, 2010 traffic stop that are described in
the text accompanying notes 11 and 12, supra. See ECF No. 117 (Presentence Investigation
Report) ¶ 41, at 13-14.
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numeral “I.” 28 An offense level of 33, when joined with a criminal history
category of I, produced an advisory guideline imprisonment range of 135 to 168
months for the offense of receipt of child pornography. 29
When the district judge pronounced sentence at the conclusion of the second
sentencing hearing, he stated:
All of the outstanding motions of the defendant made
previously are being denied again. The objections that were raised
during the sentencing are overruled and denied. And the position
maintained by the probation officer and/or the government has been
the correct position in this case.
I find the presentence report to be complete, true and accurate.
It is the judgment of this Court that this defendant be committed
to the custody of the Bureau of Prisons for a term of 168 months [the
high-end of the finally determined Guidelines sentence range] as to
Count One, 120 months as to Count Two; these terms to run
concurrent one with the other.
This is sufficient under the circumstances for punishment and
for deterrent, for whatever effect that may have on deterrent.
I have considered the 3353 factors[30] as well as all of the policy
statements and guidelines. And this appears from the facts and the
law and the evidence it will be an appropriate sentence.
28
According to the sentencing table found in USSG Chapter 5, Part A, a criminal history
score of 1 establishes a criminal history category of Roman Numeral “I.” See ECF No. 117
(Presentence Investigation Report) ¶¶ 42 & 43, at 14.
29
See id. ¶ 75, at 18. The statutory minimum punishment for a violation of 18 U.S.C. §
2252A(a)(2)(A) is 5 years (or 60 months), and the maximum is 20 years (or 240 months). 18
U.S.C. § 2252A(b)(1).
34
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ECF No. 157, at 37-38 (alterations supplied).
The procedural and substantive reasonableness of a sentence is reviewed for
an abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). The
Supreme Court has instructed that
a district court should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range. See [Rita v. United
States,] 551 U.S.[ 338,] 347-348 [(2007)]. As a matter of
administration and to secure nationwide consistency, the Guidelines
should be the starting point and the initial benchmark. The Guidelines
are not the only consideration, however. Accordingly, after giving
both parties an opportunity to argue for whatever sentence they deem
appropriate, the district judge should then consider all of the § 3553(a)
factors to determine whether they support the sentence requested by a
party. In so doing, he may not presume that the Guidelines range is
reasonable. See id., at 351, 127 S. Ct. 2456. He must make an
individualized assessment based on the facts presented. If he decides
that an outside-Guidelines sentence is warranted, he must consider the
extent of the deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance. We find it
30
The “3553 factors” is a reference to the sentencing considerations enumerated in 18
U.S.C. § 3553(a), which include:
(1) the nature and circumstances of the offense and the history and characteristics
of the defendant; (2) the need to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense; (3) the need
for deterrence; (4) the need to protect the public; (5) the need to provide the
defendant with needed educational or vocational training or medical care; (6) the
kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to avoid
unwarranted sentencing disparities; and (10) the need to provide restitution to
victims.
United States v. Cavallo, – F.3d – , 2015 WL 3827099, at *22 n.20 (11th Cir. June 22, 2015).
35
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uncontroversial that a major departure should be supported by a more
significant justification than a minor one. After settling on the
appropriate sentence, he must adequately explain the chosen sentence
to allow for meaningful appellate review and to promote the
perception of fair sentencing. Ibid., 127 S. Ct. 2456.
Regardless of whether the sentence imposed is inside or outside
the Guidelines range, the appellate court must review the sentence
under an abuse-of-discretion standard. It must 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 — including an
explanation for any deviation from the Guidelines range. Assuming
that the district court’s sentencing decision is procedurally sound, the
appellate court should then consider the substantive reasonableness of
the sentence imposed under an abuse-of-discretion standard. When
conducting this review, the court will, of course, take into account the
totality of the circumstances, including the extent of any variance
from the Guidelines range. If the sentence is within the Guidelines
range, the appellate court may, but is not required to, apply a
presumption of reasonableness. Id., at 347, 127 S. Ct. 2456. But if the
sentence is outside the Guidelines range, the court may not apply a
presumption of unreasonableness. It may consider the extent of the
deviation, but must give due deference to the district court’s decision
that the § 3553(a) factors, on a whole, justify the extent of the
variance. The fact that the appellate court might reasonably have
concluded that a different sentence was appropriate is insufficient to
justify reversal of the district court.
Gall, 552 U.S. at 49-50 (footnote omitted, alteration supplied).
A. Procedural Reasonableness
1. Consideration of the sentencing factors enumerated in 18 U.S.C. §
3553(a)
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Bilus first asserts that the district court failed to adequately consider the
sentencing factors enumerated in 18 U.S.C. § 3553(a). A district court, however,
“is not required ‘to state on the record that it has explicitly considered each of the §
3553(a) factors or to discuss each of the § 3553(a) factors.’” United States v.
Sanchez, 586 F.3d 918, 936 (11th Cir. 2009) (quoting United States v. Scott, 426
F.3d 1324, 1329 (11th Cir. 2005), abrogated on other grounds by Rita v. United
States, 551 U.S. 338 (2007)) (alteration supplied). Instead, “[i]t is sufficient that
the district court considers the defendant’s arguments at sentencing and states that
it has taken the § 3553(a) factors into account.” Sanchez, 568 F.3d at 936 (citing
Scott, 426 F.3d at 1330; United States v. Talley, 431 F.3d 784, 786 (11th Cir.
2005), abrogated on other grounds by Rita, 551 U.S. 338) (alteration supplied).
In United States v. Docampo, 573 F.3d 1091 (11th Cir. 2009), this Court
held that the district court properly considered the sentencing factors when it
“stated that it had heard and considered [the defendant’s] arguments,” and then
stated:
After considering the advisory sentencing guidelines and all of the
factors identified in Title 18 United States Code, Section 3553(a)(1)
through (7), the Court finds that the sentence imposed is sufficient but
not greater than necessary to comply with the statutory purposes of
sentencing.
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Id. at 1100 (alteration supplied, internal quotation marks and citation omitted).
In Sanchez, this Court found that the trial court adequately discussed the
sentencing factors when it addressed all the factors that had been raised by the
defendant. 568 F.3d at 936. In Scott, this Court held that the district court had
properly considered the sentencing factors when it “stated that it had considered
‘all the obvious things that you would normally take in consideration,’ particularly
‘the age of the child,’” and when it “explicitly acknowledged that it had considered
[the defendant’s] arguments at sentencing and that it had considered the factors set
forth in § 3553(a).” 426 F.3d at 1329-30 (alteration supplied).
Similarly, the district judge in the present case stated that he had considered
all of the § 3353 factors, and had given special consideration to the need for
punishment and deterrence. Those statements were made after a sentencing
hearing during which the judge heard all of Bilus’s arguments. Even though the
judge did not recite all of the sentencing factors enumerated in § 3353(a), his
sentencing statement was not so devoid of detail and explanation as to constitute
procedural error.
2. Application of the § 2G2.2(b)(2) enhancement
Bilus asserts that the district court procedurally erred when applying a two-
level enhancement to the base offense level for the specific offense characteristic
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of receipt of pornographic material involving a minor who had not attained the age
of 12 years. 31 Bilus contends that this enhancement contains an intent element, see
United States v. Saylor, 959 F.2d 198, 200 (11th Cir. 1992), but “[t]he jury was not
asked and did not make a determination that Bilus intended to receive material
involving children under 12.” Appellant’s Brief, at 70 (alteration supplied). He
also asserts that the indictment did not specifically refer to children under age 12.
The indictment at issue in this Court’s opinion in Saylor
referred only to “children” in the conspiracy count and to “minors”
and “young girls” in the substantive count, and did not allege the age
of the children that would permit enhancement. Thus, [United States
v.] Gomez[, 905 F.2d 1513 (11th Cir.1990),] and [United States v.]
Alvarez[, 735 F.2d 461 (11th Cir. 1984),] tend to support the argument
that the enhancement should not apply if the defendant intended to
receive material involving children over 12 years of age, and whose
conviction by the jury did not show otherwise.
Id. at 200 (alterations supplied). 32 That language cannot be extended as far as
Bilus suggests, however. The intent requirement addressed in Saylor was not
31
Bilus actually states that the district court “procedurally erred in assessing the two-
level increase under U.S.S.G. § 2G2.2(b)(1).” Appellant’s Brief at 70. That is an obvious
typographical error, because § 2G2.2(b)(1) calls for a reduction of two levels, not an
enhancement. The correct reference is USSG § 2G2.2(b)(2), which calls for a 2-level increase
when the pornographic material “involved a prepubescent minor or a minor who had not attained
the age of 12 years.”
32
In those cases, this Court “distinguished between cases where the indictment upon
which the defendant was found guilty specified the type and quantity of drug involved and those
cases where neither the indictment nor the jury verdict made these facts clear.” Saylor, 959 F.2d
at 200 (citing United States v. Alvarez, 735 F.2d 461 (11th Cir. 1984)).
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satisfied because the defendant had specifically stated on an order form that he
only wanted to receive videos of children over the age of 12 years, but he,
nevertheless, was sent videos of younger children. See id. at 199-200. There is no
such evidence here. Instead, Bilus’s own expert, Dr. Rosenbloom, a pediatric
endocrinologist, acknowledged that the titles to at least two of the files —
“11yofucking.wmv” and “best 10yohavingfirstorgasm.impeg” — indicate that the
files would depict children under the age of 12 years. ECF No. 134, at 86-87.
Thus, Bilus’s intent to view images of children under the age of 12 years can
reasonably be inferred from those file names. Dr. Rosenbloom also testified, based
upon an analysis of the physical characteristics of the participants depicted in three
of the photographic images and one of the videos seized from Bilus’s computer,
that the sexual acts depicted in that evidence likely involved children under the age
of 12 years. Two images were even of a toddler who was “unquestionably under
12 years of age.” ECF No. 134, at 58.
Thus, the district court did not abuse its discretion in finding that Bilus
received pornographic material involving minors who had not attained the age of
12 years, and applying the enhancement called for in USSG § 2G2.2(b)(2).
3. Application of the § 2G2.2(b)(5) enhancement
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Bilus also asserts that the district court procedurally erred in applying a five-
level increase to the base offense level for “engag[ing] in a pattern of activity
involving the sexual abuse or exploitation of a minor,” pursuant to USSG §
2G2.2(b)(5) (alteration supplied). The comment to the Sentencing Guidelines
defines the phrase “pattern of activity involving the sexual abuse or exploitation of
a minor” as
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.
USSG § 2G2.2(b)(5), comment (n.1). The term “sexual abuse or exploitation” is
defined as any of the following:
(A) conduct described in 18 U.S.C. § 2241, § 2242, § 2243, §
2251(a)-(c), § 2251(d)(1)(B), § 2251A, § 2260(b), § 2421, § 2422, or
§ 2423; (B) an offense under state law, that would have been an
offense under any such section if the offense had occurred within the
special maritime or territorial jurisdiction of the United States; or (C)
an attempt or conspiracy to commit any of the offenses under
subdivisions (A) or (B). “Sexual abuse or exploitation” does not
include possession, accessing with intent to view, receipt, or
trafficking in material relating to the sexual abuse or exploitation of a
minor.
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Id. The “sexual abuse or exploitation” at issue here appears to be an attempt to
commit the offenses described in 18 U.S.C. §§ 2241-2243, which concern the
performance of actual sex acts.
Bilus engaged in a series of Skype “chats” with individuals who were
believed to be minors. The Presentence Report contains detailed summaries of five
chats in which the other participants inform Bilus that they are underage. Some of
the chats included video sessions during which Bilus and/or the other participant
would masturbate. During some chats, Bilus asked the participant to take off her
clothes and show him her private parts. During others, he told the other party that
he wanted to perform sexual acts with her in person. On one occasion, he asked
the other participant in the online chat where she lived, and whether she wanted
him to visit her.
Bilus asserts that the district court erroneously applied this enhancement
because there was no evidence that the other chat participants were minors, or that
Bilus believed they were minors. That argument clearly is unfounded, as the
participants in at least some of the chats directly informed Bilus they were under
the age of 18.33
33
The comment to the Guidelines defines a minor as “an individual who has not attained
the age of 18 years.” USSG § 2G2.2(b)(5), comment (n.1).
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Bilus also asserts that the chats did not constitute a “substantial step” toward
the actual commission of an offense, as is required for an “attempt.” His argument
is based upon United States v. Rothenberg, 610 F.3d 621 (11th Cir. 2010). There,
the defendant pled guilty to using a computer to induce a minor to engage in sexual
activity in violation of 18 U.S.C. § 2422(b), 34 and possessing visual depictions of a
minor engaging in sexually explicit conduct, in violation of 18 U.S.C. §
2252(a)(4)(B). 35 Id. at 623. The issue on appeal was whether the district court
34
That statute provides:
Whoever, using the mail or any facility or means of interstate or foreign
commerce, or within the special maritime and territorial jurisdiction of the United
States knowingly persuades, induces, entices, or coerces any individual who has
not attained the age of 18 years, to engage in prostitution or any sexual activity for
which any person can be charged with a criminal offense, or attempts to do so,
shall be fined under this title and imprisoned not less than 10 years or for life.
18 U.S.C. § 2242(b).
35
That provision criminally punishes anyone who:
knowingly possesses, or knowingly accesses with intent to view, 1 or more books,
magazines, periodicals, films, video tapes, or other matter which contain any
visual depiction that has been mailed, or has been shipped or transported using
any means or facility of interstate or foreign commerce or in or affecting interstate
or foreign commerce, or which was produced using materials which have been
mailed or so shipped or transported, by any means including by computer, if—
(i) the producing of such visual depiction involves the use of a
minor engaging in sexually explicit conduct; and
(ii) such visual depiction is of such conduct
18 U.S.C. § 2252(a)(4)(B).
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erred in applying the § 2G2.2(b)(5) enhancement as a result of two chats located on
the defendant’s computer. During both of the chats, the defendant “actively
coached and encouraged other adults in graphic detail about how to sexually abuse
minors in their care or under their influence.” Id. at 625. The defendant asserted
that the chats were not “legally sufficient to constitute an attempt to violate 18
U.S.C. § 2422(b) or any other law because neither chat rises to the level of a
‘substantial step’ toward commission of an offense.” Id. at 626. An essential
element of any attempt crime is that the defendant “engaged in conduct which
constituted a substantial step toward the commission of that crime and which
strongly corroborates the defendant’s criminal intent.” Id. (citing United States v.
Yost, 479 F.3d 815, 819 (11th Cir. 2007); United States v. Murrell, 368 F.3d 1283,
1286 (11th Cir. 2004); United States v. McDowell, 250 F.3d 1354, 1365 (11th Cir.
2001)).
Whether a given activity or course of conduct amounts to a substantial
step toward the commission of a crime is a question of fact that will
vary from case to case depending not only upon the activity or course
of conduct itself, but also upon the nature of the underlying offense to
which the attempt is tied.
Rothenberg, 610 F.3d at 627. Under the facts presented in Rothenberg, this Court
easily reached the conclusion that the chats constituted a substantial step toward
the commission of an offense involving the persuading, inducing, or enticing
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engagement in unlawful sexual activity, given that oral or written communications
were “the principal if not the exclusive means of committing the offense.” Id. The
defendant’s chats were
specific instructions to adults with influence over young children;
these graphic guides to sexual exploitation showed the adults both
how, physically, to molest the children and how, emotionally, to
persuade the children to comply with the abuse. Accordingly, the
chats constituted “important action[s] leading to the commission” of
inducing particular children to engage in illegal sexual activity.
Id. (alteration in original).
Similarly, here, it is not difficult to make a mental leap from the content of
Bilus’s chats to the commission of a sex crime. Bilus asserts that there was “no
evidence that [he] had discussions with the alleged minors about meeting to have
sex. The communications were not of a persuasive nature and did not attempt to
persuade the alleged minor to meet Bilus to have sex.” Appellant’s Brief, at 72
(alteration supplied, emphasis in original). That assertion is flatly contradicted by
the record. During one chat, Bilus asked the other participant where she lived and
if she wanted him to visit her. During other chats, Bilus stated that he would have
to “be careful” with the other participant if they met in person because of her age.
ECF No. 117, at 9. He told some participants he wanted to have sex with them,
and he described specific sex acts he wanted to perform.
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Based on the foregoing, the trial court did not abuse its discretion in finding
that Bilus had engaged in a pattern (two or more instances) of sexual abuse or
exploitation of a minor and applying the enhancement set forth in § 2G2.2(b)(5).
B. Substantive Reasonableness
Bilus also asserts that the trial court’s sentence was substantively
unreasonable. As the party challenging the sentence, he bears the burden of
showing that it is unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th
Cir. 2010) (“The party challenging the sentence bears the burden to show it is
unreasonable in light of the record and the § 3553(a) factors.”) (citing United
States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006)).
A district court abuses its discretion, and thereby renders the sentence
imposed substantively unreasonable, “‘when it (1) fails to afford consideration to
relevant factors that were due significant weight, (2) gives significant weight to an
improper or irrelevant factor, or (3) commits a clear error of judgment in
considering the proper factors.’” United States v. Irey, 612 F.3d 1160, 1189 (11th
Cir. 2010) (quoting United States v. Campa, 459 F.3d 1121, 1174 (11th Cir.
2006)). A “clear error of judgment” occurs when a district court “considers the
proper factors but balances them unreasonably,” resulting in “a sentence that does
not ‘achieve the purposes of sentencing as stated in § 3553(a).’” Irey, 612 F.3d at
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1189 (citations omitted). An appellate court should review each step of the
sentencing calculation and consider the totality of the circumstances. Id. at 1189-
90.
To the extent that the district court has found facts, we accept them
unless they are clearly erroneous. [United States v. Pugh, 515 F.3d
1179, 1192 (11th Cir. 2008)]. At the same time we can and should
consider “additional salient facts that were elicited, and
uncontroverted.” Id. The difference is between contradicting a
factfinding, on the one hand, and ignoring uncontroverted facts that
the district court failed to mention on the other. That difference is
important because a district court cannot write out of the record
undisputed facts by simply ignoring them. The failure to mention
facts may well reflect the district court’s judgment that those facts are
not important, but the importance of facts in light of the § 3553(a)
factors is not itself a question of fact but instead is an issue of law.
See United States v. Taylor, 487 U.S. 326, 337, 108 S. Ct. 2413, 2419-
20, 101 L. Ed. 2d 297 (1988) (“Factual findings of a district court are,
of course, entitled to substantial deference and will be reversed only
for clear error. A judgment that must be arrived at by considering and
applying statutory criteria, however, constitutes the application of law
to fact and requires the reviewing court to undertake more substantive
scrutiny to ensure that the judgment is supported in terms of the
factors identified in the statute.” (citations omitted)).
After performing the required analysis, we are to vacate the
sentence if, but only if, we “are left with the 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.” Pugh, 515 F.3d at 1191 (quotation marks omitted); accord
United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009); United
States v. McBride, 511 F.3d 1293, 1297-98 (11th Cir. 2007); United
States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).
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Irey, 612 F.3d at 1190 (footnote omitted, alterations supplied).
Bilus asserts that district court’s sentence was unreasonable because it
afforded too much weight to the punishment and deterrence factors, and not
enough weight to the testimony of his expert witness, Dr. Eric Imhof, that he was
amenable to treatment and posed a low risk of recidivism. Bilus also asserts that
the district court should have afforded greater weight to the fact that the number of
images he possessed was on the “low end” compared to other offenders.
Appellant’s Brief, at 66; see also ECF No. 157, at 21.
Bilus’s argument amounts to nothing more than his disagreement with the
district court’s decision about how to weigh various sentencing factors. That is
insufficient to demonstrate that the district court abused its discretion. See Gall,
552 U.S. at 51 (“The fact that the appellate court might reasonably have concluded
that a different sentence was appropriate is insufficient to justify reversal of the
district court.”). Because the 168-month sentence fell within the Guidelines range
(albeit at the high end of the range), the Court can expect it to be reasonable. See
United States v. Perkins, 787 F.3d 1329, 1342 (11th Cir. 2015) (“Although we do
not automatically presume that a sentence within the guidelines range is
reasonable, we ordinarily expect such a sentence to be reasonable.”) (citing United
States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008)). The district court weighed all
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of the § 3353(a) factors, and it was entitled to afford more weight to the factors of
punishment and deterrence. Those considerations are particularly important in
child pornography cases, because society has a strong interest in protecting
children and preventing future child sex crimes. Given Bilus’s pattern of sexual
behavior involving children, including at least one instance where he was
convicted for engaging in sexual contact with a child he met online, it was not
unreasonable for the district court to focus on those factors. Moreover, as
discussed previously, the district court did not err in failing to more fully explain
its weighing of the § 3353(a) factors.
In summary, considering the totality of the circumstances, the district court
did not abuse its discretion, and thereby commit substantive error, when it imposed
a sentence at the top of the Guidelines range.
VIII. CONCLUSION
For the foregoing reasons, we conclude that the district court erred in
denying Bilus’s motion for judgment of acquittal as to Count Two of the
indictment. The district court’s denial of the motion for judgment of acquittal is
REVERSED and REMANDED as to Count Two, with directions for the district
court to vacate the conviction and sentence for the offense alleged in that Count.
In all other respects, the district court’s decision is AFFIRMED.
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AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
50