United States v. Tampico , 297 F.3d 396 ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-20178
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JONATHAN M. TAMPICO
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:98-CR-485-1
_________________________________________________________________
July 6, 2001
Before HILL,* JOLLY, and BENAVIDES, Circuit Judges.
PER CURIAM:**
Jonathan Tampico appeals his conviction and sentence for the
possession, receipt and distribution of child pornography, in
violation of 18 U.S.C. § 2252-2252A. Because the statute under
which Tampico was convicted was constitutional, there was
sufficient evidence to convict him, and there was no error in the
sentence, we AFFIRM Tampico’s conviction and sentence.
*
Circuit Judge of the Eleventh Circuit, sitting by
designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I
In 1989, approximately ten years before the conviction at
issue here, Jonathan M. Tampico was convicted of sexually molesting
a boy under the age of 14 years, and was sentenced to six years in
prison in California. He was released in October 1992 on the
condition that he not possess child pornography. Tampico’s parole
was revoked on September 12, 1995, after police discovered a large
volume of child pornography at his residence. He was released
again on February 23, 1996, when California authorities discovered
he had discharged his parole. Although the California district
attorney’s office intended to file state charges for the possession
of child pornography, Tampico left California and moved to Texas,
without informing either the California or Texas authorities of his
new address. A television broadcast of “America’s Most Wanted” on
July 11, 1998, led to his arrest in Texas.
After Tampico’s arrest, authorities seized a large volume of
child pornography from Tampico’s residence and storage shed, much
of which Tampico had brought from California by U-Haul. Both the
individual with whom Tampico was living, Jerome Ciolio, and another
individual who had obtained child pornography from Tampico, Donald
Sandberg, gave statements implicating Tampico in offenses relating
to child pornography.
On December 9, 1998, Tampico was indicted for violations of
the federal statute prohibiting child pornography and the sexual
2
exploitation of children. 18 U.S.C. § 2252-2252A. Specifically,
Counts One through Four of the indictment charged Tampico with,
respectively, possession, receipt, distribution, and reproduction
of child pornography involving the sexual exploitation of minors.
Count Five dealt with the forfeiture of Tampico’s property.
A bench trial on stipulated facts was conducted on
September 17, 1999. Tampico admitted to possession of the evidence
seized by the government, stated that Sandberg had obtained certain
photographs from Tampico’s computer, and stipulated that the videos
and photographs had been transported in interstate commerce. The
government also submitted evidence, through the testimony of an FBI
agent, that Sandberg and Ciolino had told the FBI that Tampico had
transported a great deal of the same child pornography from
California. Sandberg told the FBI that he was computer illiterate
and that Tampico had printed the computer images off his computer
for Sandberg. After examining the photographs, a government
expert, Dr. Sheila Lahoti, determined, through Tanner analysis,
that the children appeared to be between the ages of nine and
eighteen years. The district court found Tampico guilty of Counts
One, Two, and Three, that is, possessing, receiving, and
distributing child pornography. It found him not guilty of Count
Four, reproducing child pornography.
Tampico submitted over sixty objections to the Presentence
Investigation Report (“PSR”). The district court addressed each of
these objections, some of which the court sustained, during the
3
sentencing hearing on February 14, 2000. The district court then
sentenced Tampico to 60 months on Count One, and 360 months each
for Counts Two and Three, to run concurrently. The 360-month
sentence represented an upward departure, based on the general
policy statement of U.S. Sentencing Guideline § 5K2.0, from the
Sentencing Guideline range of 210 to 262 months of confinement.
The district court gave a number of reasons for granting the upward
departure, including: Tampico’s departure from California without
notifying the authorities within days of his release from prison
for sexually assaulting a minor; the sheer volume of images
involved; Tampico’s continued exploitation of certain victims, even
after incarceration; his involvement in the North American Man Boy
Love Association (“NAMBLA”); and his extensive history of
exploiting children.
II
Tampico now appeals both his conviction and his sentence. He
challenges the constitutionality of 18 U.S.C. § 2256(8), the
sufficiency of the evidence for his conviction on the distribution
count, the district court’s upward departure on his sentence, and
the district court’s admission of the Presentence Investigation
Report (“PSR”) as evidence during the sentencing hearing.1
1
For the purpose of Supreme Court review, Tampico also
contends that the district court erred in enhancing his sentence
under 18 U.S.C. § 2252A(b)(1) for a prior conviction relating to
sexual abuse, because the prior conviction was not alleged in the
indictment. Tampico claims that this is unconstitutional after the
Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466,
4
A
Tampico first contends that the definition of child
pornography under the Child Pornography Prevention Act, 18 U.S.C.
§ 2252A, is vague and overbroad, and prohibits protected speech in
contravention of the First Amendment. Section 2256(8), which
provides the definition of child pornography for all of the counts
against Tampico, defines child pornography as:
any visual depiction, including any photograph, film, picture,
or computer generated image or picture, whether made or
produced by electronic, mechanical, or other means, of
sexually explicit conduct where –
(A) the production of such visual depiction involved the use
of a minor engaging in sexually explicit conduct;
(B) such visual depiction is, or appears to be, of a minor
engaging in sexually explicit conduct;
(C) such visual depiction has been created, adapted, or
modified to appear that an identifiable minor is engaging
in sexually explicit conduct; or
(D) such visual depiction is advertised, promoted, presented,
described, or distributed in such a manner that conveys
the impression that the material is or contains a visual
depiction of a minor engaging in sexually explicit
conduct.
19 U.S.C. § 2256(8)(emphasis added). Tampico’s challenge focuses
on the “appears to be” language in the statute. He contends that
non-obscene, sexually explicit images that merely appear to depict
minors are protected speech under the First Amendment.
Tampico’s First Amendment challenge to § 2252A is foreclosed
by our recent decision in United States v. Fox, 248 F.3d 394 (5th
120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which found that sentencing
factors must be proved beyond a reasonable doubt. Tampico
recognizes, however, that this issue is foreclosed by the Supreme
Court’s decision in Almendarez-Torres v. United States, 523 U.S.
224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).
5
Cir. 2001), which upheld the constitutionality of the “appears to
be” language. In Fox, we found that § 2252A survived strict
scrutiny because of the government’s compelling interest in
“shielding all children from sexual exploitation resulting from
child pornography.” Id. at 402 (quoting United States v. Mento,
231 F.3d 912, 920(4th Cir. 2000)). We also found that the statute
was neither overbroad nor void for vagueness. Fox, 248 F.3d at 404-
07. Thus, we reject Tampico’s constitutional challenge to the
statute.
B
Tampico next claims that the evidence was insufficient to
prove him guilty of Count Three, the distribution of child
pornography under 18 U.S.C. § 2252(a)(2). In reviewing challenges
to the sufficiency of the evidence, we generally hold the evidence
sufficient if a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. United
States v. Resio-Trejo, 45 F.3d 907, 910-11 (5th Cir. 1995).
Because Tampico failed to make and renew a motion for a judgment of
acquittal, however, our review is limited to plain error review.
United States v. Willis, 38 F.3d 170, 178 (5th Cir. 1994). Under
this standard, the conviction can be reversed only if there was a
“manifest miscarriage of justice,” such as a complete lack of
evidence to support the verdict, or such tenuous evidence that the
conviction itself was shocking. United States v. Villasenor, 236
F.3d 220, 222 (5th Cir. 2001) (citations omitted).
6
Tampico contends that the evidence was insufficient to convict
him of distribution of child pornography because the court
acquitted him of reproduction of child pornography. He argues that
the government only offered evidence that Tampico distributed child
pornography to Sandberg, by printing pictures off the computer.
Tampico claims that a verdict that he did not reproduce the
photographs is therefore inconsistent with a verdict that he
distributed these photographs to Sandberg, because the reproduction
of the photographs off the computer was necessary for their
distribution. He also claims that while a jury may render
inconsistent verdicts, a court in a bench trial may not.
The claim on which Tampico was acquitted, however, was for
“knowingly reproduc[ing] any child pornography for distribution
through the mails, and in interstate and foreign commerce by any
means, including by computer.” 18 U.S.C. § 2252(a)(3). Because
the reproduction claim required the government to show that Tampico
reproduced child pornography for “distribution through the mails,
or in interstate and foreign commerce by any means, including by
computer,” an acquittal on the reproduction claim does not mandate
the inference that Tampico did not reproduce child pornography.
Tampico’s conviction on the distribution charge under §
2252A(a)(2), on the other hand, did not require proof of an intent
to distribute through the mails or in interstate commerce; it
required proof that Tampico distributed materials containing child
pornography that had “been mailed, shipped, and transported in
7
interstate and foreign commerce by any means, including by
computer.” 18 U.S.C. § 2252A(a)(2)(a),(b). Thus, Tampico’s
acquittal on the charge of reproducing child pornography did not
automatically require acquittal on the charge of distributing child
pornography. The court reasonably could have found that Tampico
reproduced child pornography to distribute, not in interstate
commerce, but to Sandberg, who lived next door. The act of
distributing the child pornography (which had been in interstate
commerce) to Sandberg could then form the basis for the
distribution charge.
Because there is evidence that Tampico knowingly distributed
child pornography to Sandberg, and there was evidence that the
child pornography had been in interstate commerce, Tampico’s
conviction is not a manifest miscarriage of justice. The evidence
is sufficient to support the district court’s verdict on Count
Three.
C
Tampico next contends that the district court abused its
discretion by departing upward on Tampico’s sentence for Counts Two
and Three to 360 months from the sentence guideline of 210 to 262
months. Tampico contends that the district erred by considering
(1) evidence on the quantity of pornographic materials when the
exact quantity was unclear, (2) factors that had already been taken
into account under the guidelines, and (3) Tampico’s membership in
NAMBLA. He also argues that the district court failed to give him
8
notice that it was planning to consider certain facts as grounds
for upward departure.
We review the district court’s upward departure from the
sentencing guidelines for abuse of discretion. United States v.
Route, 104 F.3d 59, 64 (5th Cir. 1997). “[W]e will affirm an
upward departure if (1) the court gives acceptable reasons for
departing, and (2) the extent of the departure is reasonable.” Id.Upward departure is justified when the case is atypical, and does
not fall into the “heartland” of cases embodied by the sentencing
guidelines. United States v. Winters, 174 F.3d 478, 482 (5th Cir.
1999). More specifically, the sentencing court may depart from the
guidelines if it finds an aggravating circumstance not adequately
taken into account by the guidelines, or if unusual circumstances
render the guideline level insufficient. Id. The district court’s
determination is entitled to substantial deference because of the
district court’s particular competence to determine whether a case
is ordinary or unusual compared to the vast majority of cases. Id.If the district court departs from the Sentencing Guidelines
for reasons not included in the PSR or other presentencing
submissions, it must give the parties notice and specifically
identify the grounds for an upward departure. United States v.
Nevels, 160 F.3d 226, 231 (5th Cir. 1998). Because Tampico did not
object to the lack of notice in the district court, his allegations
of lack of notice are reviewed for plain error. See Fed. R. Crim.
P. 52(b); Nevels, 160 F.3d at 231. Even assuming plain error, the
9
sentence merits reversal only if the error affects the substantial
right of the defendant or seriously affects the fairness of the
proceeding. United States v. McDowell, 109 F.3d 214, 216 (5th Cir.
1997). The defendant has the burden of proving that the error was
prejudicial. Nevels, 160 F.3d at 231.
In justifying its upward departure, the district court noted:
first, that the sentencing guidelines did not adequately take into
account the volume of pornographic images; second, that the
defendant had sexually molested children other than the victim that
led to Tampico’s first conviction; third, that Tampico had used
the Big Brothers program to target children for sexual
exploitation, and had therefore smudged the reputation of the Big
Brothers program; fourth, that Tampico associated with NAMBLA, a
group known to promote adult/child sexual relations, including the
support of a foster home in Thailand for the sexual exploitation of
children; and fifth, that the defendant’s criminal history category
was underrepresentative of the seriousness of his conduct and the
likelihood of recidivism, as he failed to notify officials of his
change of address when he moved to Texas.
1
Tampico first argues that the volume of pornographic material
is not an appropriate ground for departure, because the district
court did not actually know what volume of child pornography
Tampico had in his possession. Tampico points to the fact that the
district court sustained an objection to information in the PSR
10
that deemed all of the visual depictions as child pornography, but
overruled Tampico’s objection to a paragraph in the PSR which
described the amount of child pornography seized in California,
even though that amount included as child pornography images that
the other ruling suggested were not pornographic. Even if the
district court could not determine the exact volume of child
pornography, however, Tampico was clearly in possession of
significant amounts of child pornography. The government’s exhibit
list contained over 300 pages of details concerning materials
recovered from Tampico. Tampico rented a U-Haul to move the
materials from California to Texas. Because there was significant
evidence for the district court to rely on in considering the
volume of pornographic materials, the court did not abuse its
discretion in considering the volume of materials in granting the
upward departure.
2
Tampico next contends that the district court should not have
considered the sexual abuse of other children because a five level
increase had already been imposed under U.S. Sentencing Guideline
§ 2G2.2(b)(4) for a pattern of activity involving the sexual abuse
or exploitation of a minor. Tampico refers to the commentary
definition of pattern of activity to show that multiple minors and
instances may be included in an increase under the Guideline.2
2
Pattern of activity involving the sexual abuse or
exploitation of a minor is defined as
11
U.S.S.G. § 2G2.2, cmt. n.1. The commentary to the guidelines,
however, also notes that “an upward departure may be warranted if
the defendant received an enhancement under subsection (b)(4) but
that enhancement does not adequately reflect the seriousness of the
sexual abuse or exploitation involved.” U.S.S.G. § 2G2.2, cmt.
n.2. Tampico was convicted in California for sexual abuse of a
minor. The individual that Tampico had been living with, Jerome
Ciolino, told the authorities that he had been abused by Tampico as
a minor. In addition, the PSR contained a report by the
authorities that one of Tampico’s victims alleged that Tampico had
sexually assaulted children who were part of the Big Brothers
program. Furthermore, the PSR included information on the
California case, which had initially involved six boys. The
additional charges were dropped when Tampico agreed to plead
guilty. The evidence also included pictures of Thai boys sitting
on Tampico’s lap, and information that members of NAMBLA were
arrested in Thailand for sexual abuse related to a foster home for
boys developed for sexual exploitation. Given this evidence of
numerous instances of sexual abuse, it was not an abuse of
discretion for the district court to consider the sexual abuse of
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 or different victims; or (C) resulted in a
conviction for such conduct.
U.S.S.G. § 2G2.2, cmt. n.1.
12
other children in granting the upward departure.
3
Tampico also contends that the district court should not have
considered his membership in NAMBLA during sentencing. Tampico
claims that using membership in NAMBLA as a reason for upward
departure violated Tampico’s rights to free speech and association.
He also argues that the PSR indicated that NAMBLA’s purpose is to
advocate abolition of the age of consent laws, not to promote
adult/child sexual relations.
Although “the Constitution does not erect a per se barrier to
the admission of evidence concerning one’s beliefs and associations
at sentencing simply because those beliefs and associations are
protected by the First Amendment,” such evidence should not be
admitted indiscriminately. Dawson v. Delaware, 503 U.S. 159, 164
(1992). To be admissible at sentencing, evidence concerning
associations must be sufficiently related to the issues involved.
Boyle v. Johnson, 93 F.3d 180, 183-84 (5th Cir. 1996). For
instance, in Dawson, the Supreme Court remarked that evidence of
membership in a racist group would be relevant if elements of
racial hatred were involved in the murder. Dawson, 503 U.S. at
166. See also Fuller v. Johnson, 114 F.3d 491, 498 (5th Cir.
1997); Boyle, 93 F.3d at 183-85;.
By arguing that NAMBLA’s purpose is only to advocate the
abolition of age of consent laws, Tampico is essentially claiming
that his membership in NAMBLA is not related to his possession and
13
distribution of child pornography or to his history of sexual
exploitation of children. Some of the NAMBLA literature in
Tampico’s possession, however, specifically advocated Man/Boy
sexual relationships. Even the name NAMBLA, that is, the North
American Man Boy Love Association, suggests relationships between
adults and children. Because Tampico’s membership in NAMBLA may
indicate the increased likelihood of recidivism or a lack of
recognition of the gravity of the wrong, Tampico’s association with
NAMBLA is relevant to his intentions and his conduct. The fact
that Tampico is within his First Amendment rights in belonging to
NAMBLA does not bar consideration of this evidence during
sentencing.
4
Lastly, Tampico contends that he had no notice of the district
court’s intent to depart upward based on his sexual abuse of other
children or his involvement in the Big Brothers program, and that
departing California without informing local authorities was not a
ground for departure included in the PSR. As noted earlier,
Tampico did not object to the lack of notice in the district court,
and we therefore review his contentions for plain error. Tampico’s
sentence merits remand only if Tampico demonstrates that a clear
error affected his substantial rights or seriously affected the
fairness of the proceeding.
Although neither his sexual exploitation of other children nor
his involvement in the Big Brothers program were given as potential
14
grounds for upward departure in the PSR, Tampico does not describe
how notice would have affected the sentencing proceedings. Tampico
claims he had no opportunity to respond to the allegation that he
sullied the reputation of the Big Brothers program, but he does not
explain how he would have responded. He challenges the court’s
finding that he “molested numerous children” by noting that “based
on the information presented to the district court, two or possibly
three children were involved.” The information in the record
described above (the pictures of Thai boys sitting on Tampico’s
lap, the dropped charges of sexual abuse against six other boys,
the testimony of one of Tampico’s victims that Tampico had abused
boys in the Big Brother program), clearly indicate that the
district court would have departed upward even if Tampico had been
given notice that these facts were going to be considered in an
upward departure. Because Tampico has not carried his burden of
showing that the lack of notice prejudiced him, we cannot find that
the district court abused its discretion in considering these
factors in its decision to depart upward.
Tampico also contends that the fact that he failed to notify
officials of his change of address was not a ground suggested in
the PSR for an upward departure, and thus should not have been
considered in departing upward. The PSR recommended that Tampico’s
deliberate attempts to avoid arrest3 be used as a ground for upward
3
These attempts including “changing his appearance, living in
a residence obtained in another person’s name, and renting a
15
departure. The district court found that “the defendant’s criminal
history category is underrepresentative of the seriousness of his
conduct and the likelihood that he would commit future crimes as he
failed to notify officials of his change of residence which was
required based on his conviction as a sex offender.” Tampico does
not seem to have broken the law by failing to notify officials of
his change of residence. Given the evidence supporting the court’s
determination that the criminal history category was
underrepresentative, however, we cannot find the district court’s
consideration of this factor prejudicial.
In sum, considering all of these facts together, the district
court did not abuse its discretion in granting an upward departure
of approximately three offense levels. The volume of pornographic
images, the sexual molestation of numerous children, Tampico’s
membership in NAMBLA, and his smudging the reputation of the Big
Brothers program take this case outside the heartland of ordinary
cases. Viewing the record as a whole, we cannot say that the
district court’s departure was unreasonable. Thus, we find no
reversible error in the district court’s upward departure from the
sentencing guidelines.
D
Finally, Tampico claims the district court erred by accepting
as evidence the portions of the PSR to which Tampico objected. He
storage shed using a false name.”
16
contends that, for the portions of the PSR to which he objected,
the government should either have been required to introduce
evidence to support those facts, or the court should not have
considered those facts in enhancing Tampico’s sentence.
Generally, “a PSR bears sufficient indicia of reliability,
such that a sentencing judge may consider it as evidence in making
the factual determinations required by the Sentencing Guidelines.”
United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999).
Although Rule 32 of the Federal Rules of Criminal Procedure
requires the court to resolve disputed issues of fact before
sentencing, the court can adopt facts contained in the PSR without
inquiry as long as the “facts had an adequate evidentiary basis and
the defendant does not present rebuttal evidence.” United States
v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994). Rebuttal
evidence must consist of more than a defendant’s objection; it
requires a demonstration that the information is “materially
untrue, inaccurate or unreliable.” Huerta, 182 F.3d at 364(citations omitted). Although Tampico objected to a number of
factual issues in the PSR, he did not introduce any rebuttal
evidence. Thus, the district court did not err in accepting the
PSR as evidence.4
4
Tampico urges us to reconsider our determination that the
district court can adopt facts in the PSR as evidence in the light
of the Eighth Circuit’s holding that the PSR cannot be considered
as evidence over the objection of the defendant. One panel of this
court, however, cannot overrule the decision of another panel.
United States v. Fowler, 216 F.3d 459, 460 (5th Cir. 2000).
17
III
For the reasons stated above, Tampico’s conviction and
sentence are A F F I R M E D.
18