United States v. Anthony Fletcher , 634 F.3d 395 ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3195
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NTHONY L. F LETCHER,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 07-CR-10043—Michael M. Mihm, Judge.
A RGUED M AY 29, 2009—D ECIDED F EBRUARY 10, 2011
Before R IPPLE, R OVNER, and S YKES, Circuit Judges.
R OVNER, Circuit Judge. Anthony L. Fletcher was con-
victed following a jury trial of production of child pornog-
raphy, see 18 U.S.C. § 2251(a), attempted production of
child pornography, see 18 U.S.C. § 2251(a),(e), and posses-
sion of child pornography, see 18 U.S.C. § 2252A(a)(5)(B),
(b)(2). On the three counts of conviction the district court
sentenced Fletcher to a total of 480 months’ imprison-
ment to be followed by concurrent life terms of supervised
2 No. 08-3195
release. One hundred and twenty months of Fletcher’s
prison term are to run concurrently with state convic-
tions in McClean County, Illinois for related crimes.
Fletcher appeals, primarily challenging his conviction
for production of child pornography under § 2251
(Count I). Fletcher also objects to the government’s
alleged “piggy-backing” of his prosecution on the
McClean County prosecution for similar conduct and
challenges the government’s handling of certain evi-
dence before trial as well as the district court’s refusal
to dismiss a particular juror for cause. We affirm.
I.
Fletcher’s conviction for attempted production of
child pornography (Count II) stemmed from separate
incidents in Decatur and Bloomington, Illinois. In 2005,
Fletcher was living in Decatur. In June of that year he
offered a 14-year-old named Mary Beth a ride to her
boyfriend’s house. Instead, he took Mary Beth to his
own home, where he invited her inside and offered her
a job airbrushing and ironing designs on t-shirts. She
accepted the job and returned the following day with
her friend, Amanda, who also said she would work
for Fletcher. Amanda was 16 or 17 years old. Fletcher
told both girls that he needed to videotape an inter-
view with them; he told Mary Beth to lie on the tape
and state her age as 17 so that he could not be accused
of employing someone underage. She complied.
The girls worked for Fletcher for between one and two
months that summer. Fletcher showed them pictures of
No. 08-3195 3
women engaged in sexually explicit conduct every day
they were at his home. He also repeatedly asked them
to have sex with each other and to allow him to take
nude photos of them, but they both refused. After ap-
proximately six weeks, he offered them alcohol and
gave them money to buy marijuana. They smoked the
marijuana and drank while they were “working.” In
August 2005, Fletcher gave Mary Beth a shirt and skirt
and took photos of her wearing them while he in-
structed her to pose and lower the skirt provocatively.
By 2006, Fletcher had moved to Bloomington, where
he lived across the street from a girl named Alyssa. He
talked to Alyssa and her 14-year-old friend, Britney, and
invited them to his house to have some clothing air-
brushed. Once there, Fletcher showed them photos of
naked girls and asked them if he could videotape
them having sex or take nude photos of them. When
they returned another day to pick up the airbrushed
clothing he had promised them, Britney stayed alone
with Fletcher and accompanied him to his room to use
his computer. Once there Fletcher put Britney on his lap
and asked her repeatedly to have sex with him. She
refused and eventually left.
The production and possession of child pornography
charges (Counts I and III) were based on conduct in
Bloomington later that same year. In April, Fletcher
approached Britney’s sister Heather and her friend
Alena and extended his now-familiar invitation for the
girls to come inside his home and see some airbrushed
clothing. He showed them some clothing and Heather
4 No. 08-3195
told him she was 16. Alena, who was 14, told Fletcher
that she was 15 and also gave him her phone number.
Fletcher offered to give them airbrushed clothing in
exchange for housecleaning.
The girls returned the following day and he offered
them alcohol and marijuana. Heather accepted and was
soon intoxicated. They both spent the night at Fletcher’s
house and slept in his bed with him, where he had sex
with Alena and fondled Heather. They returned two
days later on a Sunday afternoon in April 2006. That day
Fletcher again gave the girls alcohol and marijuana. He
began taking pictures of them and offered them clothes
to try on for photos. He gave Alena something see-through
to wear and gave Heather shorts that were too small to
be buttoned. They posed in the clothes in his bedroom,
where he photographed them in sexually suggestive
poses and took photos focusing on their genitals and
pubic areas. He then videotaped himself having sex with
Alena. Although Fletcher cannot be identified from the
tape, Heather testified that she walked into the room
and saw the two of them.
Five other men were present at Fletcher’s home at
different times throughout the day. One of them, Lavell
Harris, Jr., was in the bedroom while Fletcher photo-
graphed Heather and Alena, and he appears in several
of the photos. He asked Heather and Alena at some
point how old they were, and when they responded
that they were 16 and 15, respectively, he said to Fletcher
and another man standing in the doorway (Tyrone Foy),
“You all going to jail.” Heather and Alena finally left
No. 08-3195 5
around 10 p.m. that night. Around midnight that same
night, someone connected the camera to a computer at
Fletcher’s home and viewed the photos of Heather
and Alena.
The following day Heather told her probation officer
what had happened at Fletcher’s home. When the proba-
tion officer told Heather that it was necessary for him
to call the police, Heather called Alena and told her
as much. Alena, in turn, called Fletcher to let him know
the police would be coming. When she was interviewed
by police later that day, Alena said that Fletcher had
not taken pictures of her.
That afternoon, officers executed a search warrant at
Fletcher’s home. They seized a Fuji camera and three
digital memory cards (one in Fletcher’s pocket and one
in a seized computer). They also took a computer and a
number of compact discs, which were later found to
contain child pornography. Although the images of
Heather and Alena had been deleted from the camera
memory card before the police arrived, a computer
expert was able to retrieve the data and reproduce the
deleted images.
In July 2007, Fletcher was charged in a superseding
indictment with attempted production of child pornogra-
phy (Britney, Alyssa, and other minors in 2005 and
2006), production of child pornography (Heather and
Alena in 2006), and possession of child pornography. At
trial, Fletcher represented himself with the assistance
of standby counsel. The government presented testimony
from Britney, Heather, Alena, and several other girls
6 No. 08-3195
Fletcher had importuned for nude photos or sex. Three
of the men present at Fletcher’s home while Heather
and Alena were there in April 2006 also testified. The
jury also heard from officers who executed the search
warrant, digital media experts, and a pediatrician who
opined as to the ages of the girls in certain photo-
graphs. Fletcher did not testify. His theory of defense
was that someone else with access to his camera and
computer created the child pornography. He called a
former police officer as an expert, who testified that
investigators should have preserved potential trace
evidence such as fingerprints that may have supported
Fletcher’s theory of defense. At the close of the govern-
ment’s case-in-chief, Fletcher moved for a judgment of
acquittal based on the officers’ alleged mishandling of
the evidence, but the district court denied his motion.
On the production of child pornography charge
(Count I), 18 U.S.C. § 2251, the district court concluded
over Fletcher’s objection that the government need not
prove as an element of the offense that Fletcher knew
that the victims were minors. The court also ruled that
Fletcher could not rely on the affirmative defense that
he did not know Heather and Alena were minors—
a defense Fletcher alluded to when he cross-examined
the girls and accused them of telling him that they were
18. On the remaining counts (attempted production and
possession of child pornography), the court instructed
the jury that it must find beyond a reasonable doubt
that Fletcher knew the girls were minors. Fletcher was
convicted on all counts. Fletcher filed a number of post-
trial motions. As relevant here, he moved for a judgment
No. 08-3195 7
of acquittal based on the government’s alleged failure
to follow its own policy against successive state and
federal prosecutions for similar crimes. His motion
relied on his convictions for related crimes in McLean
County, which preceded the grand jury’s return of the
federal superseding indictment by just two months. The
district court denied all of Fletcher’s post-trial motions.
Fletcher appeals.
II.
We begin with Fletcher’s arguments regarding the
construction and validity of § 2251. First, he maintains
that Congress intended the statute to contain a scienter
element such that the district court should have in-
structed the jury that the government bore the burden
of proving beyond a reasonable doubt that Fletcher
knew that Alena and Heather were minors. If we
conclude that there is no such requirement in the
statute, Fletcher maintains that it is unconstitutional on
its face and as applied unless it is read to allow a
defendant to raise mistake-of-age as an affirmative
defense. We consider Fletcher’s arguments in turn.
We may dispatch quickly with Fletcher’s contention
that § 2251 requires the government to prove a
defendant’s knowledge of the victim’s age. As relevant
here, section 2251(a) provides:
Any person who employs, uses, persuades, induces,
entices, or coerces any minor to engage in, or who has
a minor assist any other person to engage in, or who
8 No. 08-3195
transports any minor in or affecting interstate or
foreign commerce, or in any Territory or Possession
of the United States, with the intent that such minor
engage in, any sexually explicit conduct for the pur-
pose of producing any visual depiction of such
conduct or for the purpose of transmitting a live
visual depiction of such conduct, shall be punished
as provided under subsection (e)[.]
18 U.S.C. § 2251(a).
Contrary to Fletcher’s assertion that Congress intended
to include a knowledge requirement as to the victim’s
age, there is direct evidence that it expressly considered
and rejected such a requirement. As explained in the
House Conference Report:
The Senate Bill contains an express requirement in
proposed section 2251(a) that the crime be com-
mitted ‘knowingly.’ The House amendment does not.
The Conference substitute accepts the House provi-
sion with the intent that it is not a necessary element of
a prosecution that the defendant knew the actual age of
the child.
H.R. Rep. No. 95-811, at 5 (1977) (Conf. Rep.) (emphasis
added); see also S. Rep. No. 95-601, at 5 (1977). This
change conformed to the response of the Justice Depart-
ment to an earlier version of the proposed legislation.
The Justice Department pointed out that the word “know-
ingly” in § 2251 should be removed so that the bill
would not be “subject to an interpretation requiring the
Government to prove the defendant’s knowledge . . . [of]
No. 08-3195 9
the age of the child.” S. Rep. No. 95-438, at 23 reprinted
in 1977 U.S.C.C.A.N. 40.
The Supreme Court has likewise concluded, albeit in
dicta, that § 2251(a) contains no knowledge requirement
as to the victim’s age. The Court referenced the legisla-
tive history above when interpreting 18 U.S.C. § 2252,
which prohibits “knowingly” shipping, receiving, or dis-
tributing images of minors engaging in sexually ex-
plicit conduct. In contrasting § 2252 with § 2251(a), the
Court pointed out that in 1977 when Congress amended
the two statutes “the new bill retained the adverb ‘know-
ingly’ in § 2252 while simultaneously deleting the word
‘knowingly’ from § 2251(a).” United States v. X-Citement
Video, Inc., 513 U.S. 64, 76 (1994). This deletion was in-
tended to reflect Congress’s “ ‘intent that it is not a neces-
sary element of a prosecution [under § 2251(a)] that the
defendant knew the actual age of the child.’ ” Id. (quoting
S. Rep. No. 95-601, at 5 (1977)). The Court observed that
such an omission made sense in light of “the reality that
producers are more conveniently able to ascertain the
age of performers.” Id. at 77 n.5. Although Fletcher
points out that the Supreme Court in X-Citement
Video did not specifically consider § 2251(a) in light of the
1984 amendments (which had already passed when the
case was decided), he fails to identify anything about
those amendments that would alter our analysis.
Citing X-Citement Video, we too have noted that knowl-
edge of the performer’s age is not an element of a prose-
cution for production of child pornography under
§ 2251(a). See United States v. Johnson, 376 F.3d 689, 693 (7th
10 No. 08-3195
Cir. 2004) (“It is true that the commission of the completed
offense under § 2251(a) . . . contains no requirement that
the defendant know that the performer is a minor.”). This
conclusion is in line with every circuit to have con-
sidered the issue. See United States v. Pliego, 578 F.3d 938,
943 (8th Cir. 2009) (district court did not abuse discre-
tion in refusing to instruct jury that knowledge of
victim’s age is an element of § 2251(a)); United States v.
Malloy, 568 F.3d 166, 171 (4th Cir. 2009) (“[K]nowledge
of the victim’s age is [not] . . . an element of the of-
fense[.]”); United States v. Deverso, 518 F.3d 1250, 1257
(2008) (same); United States v. Griffith, 284 F.3d 338, 349
(2d Cir. 2002) (rejecting defendant’s argument that
district court erred by omitting scienter of age in jury
instructions for § 2251(a) prosecution); United States v.
U.S. Dist. Court, 858 F.2d 534, 538 (9th Cir. 1988) (“The
defendant’s awareness of the subject’s minority is not
an element of the offense.”). We thus reject Fletcher’s
claim that knowledge of the victim’s age is an element
of the offense. Accordingly, the district court properly
refused Fletcher’s request to instruct the jury as much.
Nor are we persuaded by Fletcher’s argument that
§ 2251(a) violates his right to equal protection if it is
read without the scienter element that he proposes.
Fletcher maintains that by targeting producers of child
pornography for strict liability Congress has created an
irrational and arbitrary distinction between those
cases involving the sexual exploitation of children where
knowledge of the victim’s age is an element of the of-
fense and those where it is not. But this argument goes
nowhere. Those statutes requiring knowledge of a
No. 08-3195 11
victim’s age—receiving, distributing, or possessing child
pornography—are all readily distinguishable from
the production of child pornography, where “the perpe-
trator confronts the underage victim personally and
may reasonably be required to ascertain that victim’s
age.” X-Citement Video, 513 U.S. at 72 n.2; see also U.S. Dist.
Court, 858 F.2d at 544 (“Those who arrange for minors
to appear in sexually explicit materials are in a far
different position from those who merely handle the
visual images after they are fixed on paper, celluloid or
magnetic tape.”). Thus, Congress clearly had a rational
basis for singling out producers of child pornography
for strict liability. Cf. Canto v. Holder, 593 F.3d 638, 641 (7th
Cir. 2010) (Congress had rational reason for differing
definitions of “aggravated felony” in Immigration Code).
Fletcher next argues that if the government need not
prove knowledge of age to convict, the statute cannot
withstand constitutional scrutiny unless we read in a
mistake-of-age defense. As discussed above, no such
defense is included in the text of the statute, and the
legislative history makes clear that none was intended.
Fletcher asserts, however, that without the defense the
statute chills conduct protected by the First Amend-
ment—namely, the creation of non-obscene pornog-
raphy featuring adult actors who may appear young.
The government counters that we need not reach the
argument because Fletcher neither formally presented a
mistake-of-age defense, nor would he qualify for one.
However, as the government must acknowledge, the
First Amendment overbreadth doctrine is one of the
few exceptions to the ordinary rule that “a person to
12 No. 08-3195
whom a statute may constitutionally be applied may not
challenge that statute on the ground that it may conceiv-
ably be applied unconstitutionally to others in situa-
tions not before the court.” New York v. Ferber, 458 U.S.
747, 767 (1982). The overbreadth doctrine allows an
individual whose conduct could be constitutionally
regulated by a statute drawn with the requisite
specificity to nevertheless attack the statute in light of
the danger that it may chill protected expression by
those who fear criminal sanctions. Id. at 768 n.21.
In Ferber, the Supreme Court considered a New York
statute prohibiting the knowing promotion of a sexual
performance of a child by distributing material depicting
such a performance. Ferber, 458 U.S. at 749. Noting the
“surpassing importance” of the state’s interest in pre-
venting sexual exploitation and abuse of minors, the
Court concluded that States “are entitled to greater
leeway in the regulation of pornographic depictions of
children.” Id. at 756-57. The Court thus concluded that
child pornography is unprotected by the First Amend-
ment and that the state statute permissibly attacked the
problem of sexual abuse of children by punishing the
distribution of child pornography. Id. at 765-66. The
Court in Ferber also rejected the defendant’s overbreadth
challenge to the statute, concluding that the statute’s
legitimate reach outweighed any potential it may have
had to chill distribution of protected material. Id. at 773.
As explained in Ferber, an overbroad statute must
reach a “substantial number of impermissible applica-
tions” before it may be considered facially invalid. Id.No. 08-3195 13
at 771 (emphasis added). Thus, the relevant question for
us is whether § 2251 as written risks chilling such a sub-
stantial amount of protected conduct that the absence of
a mistake-of-age defense outweighs the government’s
indisputably compelling interest in protecting children
from the documented ills of child pornography.
Only one court to have considered the question has
deemed it necessary to read a mistake-of-age defense
into the statute. Not surprisingly then, Fletcher relies
almost entirely on the Ninth Circuit’s opinion in
United States v. U.S. District Court, wherein a
divided panel concluded in a mandamus action that
the defendant must be allowed to present a narrow
mistake-of-age defense at his trial for violating § 2251(a).
See 858 F.2d at 543-44. The United States sought a writ of
mandamus to prevent the defendant from presenting
evidence that the sixteen-year-old girl appearing in a
pornographic film had deceived the entire adult enter-
tainment industry with false official documents, her
physical appearance, “apparent sexual experience,” and
prior and subsequent appearances in other X-rated films
distributed nationally.1 Id. at 540. The majority in
United States v. U.S. District Court thought that without
1
The child performer in U.S. District Court was Traci Lords,
who made somewhere between 80 and 100 X-rated movies
while she was a minor. “An incredibly developed, full-figured
girl, she easily duped photographers, producers and directors
(with the help of a false birth certificate and driver’s license).”
The Internet Movie Database, http://www.imdb.com/name/
nm0000183/bio (last visited Dec. 28, 2010).
14 No. 08-3195
a mistake-of-age defense, § 2251(a) would deter producers
of adult pornography from creating films with youthful
adult actors. This in turn would frustrate both youthful-
looking adult actors’ attempts to find work and stifle
the ability of audiences seeking pornography with young-
looking actors to find it. Id.
We are mindful of the Court’s caution to avoid strict
liability when it has the “collateral effect of inhibiting
the freedom of expression.” Smith v. State of Cal., 361 U.S.
147, 151 (1959). Nonetheless, for the reasons discussed
below we conclude, like every other circuit to have con-
sidered the question but the Ninth, that the statute sur-
vives constitutional scrutiny without a mistake-of-age
defense.
First, we reject Fletcher’s contention that the Constitu-
tion necessarily requires a scienter element as to the age
of the victim. Fletcher points to the general rule that a
statute without a scienter element raises serious con-
stitutional doubts. But as both the Supreme Court and
our sister circuits have noted, the production of child
pornography may be analogized to those sex offenses,
like statutory rape, that have traditionally been ex-
empted from the common-law presumption of mens rea.
See X-Citement Video, 513 U.S. at 72 n.2 (citing Morissette
v. United States, 342 U.S. 246, 251 n.8 (1952) (exempting
from mens rea requirement “sex offenses, such as rape”
where victim’s actual age is determinative despite defen-
dant’s “reasonable belief” that victim has attained age
of consent)); United States v. Wilson, 565 F.3d 1059, 1068
(8th Cir. 2009) (“[T]he background assumption of mens
No. 08-3195 15
rea is inappropriate for some strict liability sex crimes,
such as statutory rape.”). As discussed above, it makes
sense that the knowledge requirement would differ for
those crimes, like statutory rape and the production of
child pornography, where the perpetrator confronts his
victim directly. See Gilmour v. Rogerson, 117 F.3d 368,
372 (8th Cir. 1997) (“Unlike most distributors, the
sexually exploitive producer deals directly with the
child victim, like the statutory rapist who has tradi-
tionally been denied a mistake-of-age defense.”); see also X-
Citement Video, 513 U.S. at 72 n.2 (“The opportunity for
reasonable mistake as to age increases significantly once
the victim is reduced to a visual depiction, unavailable
for questioning by the distributor or receiver.”). Thus,
the producer of child pornography, like the statutory
rapist who confronts his victim directly, may be expected
to be accountable for ascertaining the victim’s age.
Second, the compelling nature of the interest in pro-
tecting children from exploitation supports putting the
risk of error on producers. As should be self-evident,
protecting children from sexual exploitation and abuse
is a governmental objective of critical importance. See,
e.g., Ferber, 458 U.S. at 758 & n.9 (citing numerous leg-
islative and literary findings detailing harmful effects
attendant to the use of children in pornography); United
States v. Pugh, 515 F.3d 1179, 1197-98 (11th Cir. 2008)
(recognizing that “Congress repeatedly has stressed the
terrible harm child pornography inflicts on its victims”);
Johnson, 376 F.3d at 695 (citing Ferber). Even more than
the passive viewer of child pornography, the creator
of such material not only contributes to but is directly
16 No. 08-3195
responsible for the exploitation of the child victim. Thus,
§ 2251(a) targets the very source of the harm. Recognizing
a mistake-of-age defense would clearly be at odds with
this compelling government objective. Moreover, Con-
gress may legitimately conclude that even a willing or
deceitful minor is entitled to governmental protection
from “self-destructive decisions” that would expose him
or her to the harms of child pornography. Malloy, 568
F.3d at 175; (citing Gilmour, 117 F.3d at 372).
With this in mind, we are hard-pressed to conclude that
the plainly legitimate sweep of the statute is outweighed
by the possibility that the production of some protected
pornography may be chilled. See Osborne v. Ohio, 495
U.S. 103, 112 (1990). For his part, Fletcher has presented
no evidence that legitimate producers of pornography
(which he was not) are deterred by the existence of strict
liability statutes like § 2251(a). Additionally, the economic
incentive for producers of adult pornography serves to
reduce any chilling effect the statute may have. See
Ferber, 458 U.S. at 772 (noting possibility that individual
with “economic incentive” is less likely to be deterred
than “the employee who wishes to engage in political
campaign activity”); Malloy, 568 F.3d at 176 (“[P]roducers
of adult pornography who wish to use youthful-looking
subjects will not be deterred by § 2251(a) for profit
reasons: pornography is lucrative. High demand creates
powerful incentives that will not be inhibited by a
slim chance of prosecution.”). And although the theo-
retical possibility exists that every diligent attempt at
age verification may fail, we think such a risk is small
and does not create a “substantial” burden on protected
No. 08-3195 17
expression. See Gilmour, 117 F.3d at 372-73 (“In this infor-
mation age, a prudent photographer or movie producer
may readily and independently confirm the age of
virtually every young-looking model.”); Malloy, 568 F.3d
at 176 n.6 (“While it is certainly true . . . that documents
can be forged . . . the originals exist somewhere . . . and
the producer of pornography, because he has direct
contact with the subject, has access to the original docu-
ments[.]”) (citing dissenting opinion in U.S. Dist. Court, 858
F.2d at 540). Furthermore, legitimate producers of
adult pornography are unlikely to be deterred merely by
the fact that they must verify an actor’s age—they are
already required to do so now. 18 U.S.C. § 2257(b)(1)
(requiring a producer of pornography to “ascertain, by
examination of an identification document containing
such information, the performer’s name and date of
birth”); X-Citement Video, 513 U.S. at 77 n.5 (noting that
“Congress has independently required both primary
and secondary producers to record the ages of performers
with independent penalties for failure to comply”).
Finally, most individuals targeted for prosecution
under § 2251(a) are those who, like Fletcher, are either
well-aware of the victim’s minority or failed to undertake
any serious effort to ascertain the victim’s age. Malloy,
568 F.3d at 176 (noting that because children de-
picted in child pornography frequently cannot be found,
prosecutors must rely on pictures to show that subject is
a minor and therefore prosecute those cases where
the subject is “unmistakably a child”).
Given the competing social factors on both sides, we
believe that § 2251 withstands constitutional scrutiny
18 No. 08-3195
without a mistake-of-age defense. Particularly when
judged in relation to the legitimate sweep of the statute,
we consider it unlikely that pornography produc-
tion will be substantially chilled in the narrow subset of
pornography featuring “youthful” appearing actors. After
considering the social costs on both sides and the lack
of evidence that the statute will significantly impact
legitimate producers of adult non-obscene pornography,
it is not difficult to conclude that the scales tip in favor
of providing the most protection possible for minors by
requiring strict liability as to the age of the subject. See
United States v. Williams, 553 U.S. 285, 292 (2008)
(overbreadth doctrine “seeks to strike a balance between
competing social costs”). For the foregoing reasons, we
join every other circuit to have considered the issue
since the Ninth Circuit decided United States v. U.S.
District Court and conclude that the First Amendment
does not mandate a mistake-of-age defense to prosecu-
tions under § 2251(a). See United States v. Humphrey,
608 F.3d 955, 962 (6th Cir. 2010) (First Amendment con-
cerns do not require engrafting mistake-of-age defense
onto § 2251(a)); Malloy, 568 F.3d at 173 (concluding that
“no reasonable mistake of age defense is constitu-
tionally required” under § 2251(a)); Pliego, 578 F.3d at 943-
44 (rejecting Ninth Circuit’s rationale for mistake of
age defense and concluding that First Amendment does
not require such a defense); Deverso, 518 F.3d at 1258(“[T]he Constitution does not mandate a mistake of age
defense under § 2251.”); United States v. Crow, 164 F.3d
229, 236 (5th Cir. 1999) (defendant’s “assertion that
section 2251(a) is unconstitutional because it lacks a
scienter requirement is meritless”).
No. 08-3195 19
Fletcher next contends that the district court erred when
it denied his motion for judgment of acquittal based on
the government’s alleged violation of its “Petite policy.”
See Petite v. United States, 361 U.S. 529 (1960) (per curiam).
Memorialized in the U.S. Attorneys’ Manual, the so-
called Petite policy is a Justice Department policy pro-
hibiting successive state and federal prosecutions for
the same crime except when necessary to vindicate a
compelling federal law enforcement interest and then
only after an Assistant Attorney General has approved
the prosecution. See U.S. Attorneys’ Manual, § 9-2.031
Dual and Successive Prosecution Policy (“Petite Policy”);
Rinaldi v. United States, 434 U.S. 22, 25 n.5 (1977) (describing
Petite policy). The policy was formulated in response to
the dual sovereign doctrine allowing separate Federal
and State prosecutions for the same criminal act. See
Rinaldi, 434 U.S. at 28-29 (citing Bartkus v. Ill., 359 U.S. 121(1959) & Abbate v. United States, 359 U.S. 187 (1959)).
Shortly before the federal grand jury returned its super-
seding indictment, Fletcher was convicted in McClean
County of two counts of aggravated criminal sexual
abuse, 720 ILCS 5/12-16(d), and two counts of child por-
nography, 720 ILCS 5/11-20.1(a)(1). The state court in-
dictments reveal that the child pornography counts
were based on charges that he knowingly photographed
Heather and Alena in acts of masturbation and sexual
intercourse, respectively.
The government disputes whether Fletcher waived his
argument because his motion for judgment of acquittal
was untimely (it was not, once the prison mailbox rule
20 No. 08-3195
is applied) and also makes much of whether there is
enough information in the record to assess whether it
in fact violated its Petite policy. But Fletcher’s argument
fails for the more straightforward reason that, as an
internal prosecutorial guideline, the Petite policy
“does not create a substantive right for the defendant
which he may enforce, and is not subject to judicial re-
view.” United States v. Mitchell, 778 F.2d 1271, 1276-77
(7th Cir. 1985) (collecting cases).
Fletcher relies heavily on Rinaldi, where the Supreme
Court did remand a case to the district court with in-
structions to dismiss because the government violated
its Petite policy. Rinaldi, 434 U.S. at 32; see also Petite, 361
U.S. at 530-31 (vacating and remanding for dismissal of
indictment on government’s motion). But Rinaldi does not
help Fletcher, because there the government itself had
acknowledged the Petite violation and moved to dismiss
the indictment under Fed. R. Crim. P. 48(a). Rinaldi, 434
U.S. at 25. The Court concluded that “[t]he defendant . . .
should receive the benefit of the policy whenever its applica-
tion is urged by the Government.” Id. at 31 (emphasis added).
Here, the government has urged no such action on
Fletcher’s behalf. Thus, as things stand, the district court
did not abuse its discretion by denying Fletcher’s motion
for a judgment of acquittal. See Mitchell, 778 F.2d at 1277.
We, note, however, our concern that a Petite violation
may have occurred here. Despite the government’s pro-
testations that from the record it is “impossible to
know” whether a Petite violation occurred, it certainly
appears that Fletcher’s prosecution for production and
No. 08-3195 21
possession of child pornography (Counts I and III) may
have run afoul of the policy.
The government complains that Fletcher’s reference to
his convictions on the Illinois Department of Correc-
tions website (which lists convictions for “Child
Porn/Film/Tape/Photo/Act”) does not provide enough
information to ascertain whether the state and federal
convictions overlap. In response, Fletcher asks that we
take judicial notice of his indictments in McClean
County, which he submitted with his reply brief. As
detailed above, the indictments charge that he photo-
graphed both Alena and Heather engaged in sexually
explicit behavior. Thus, despite the government’s posited
differences between his federal and state convictions, it
is difficult to believe that his federal convictions did
not implicate the Petite policy, which does not demand
exact overlap. It applies to any prosecution that follows
a “prior state or federal prosecution based on sub-
stantially the same act(s) or transaction(s).” U.S. Attorney’s
Manual at § 9-2.031; see also Thompson v. United States,
444 U.S. 248 (1980) (per curiam) (describing “firmly
established policy” forbidding U.S. Attorneys from prose-
cuting any person whose “alleged criminality was an
ingredient of a previous state prosecution”).
Moreover, the government’s asserted ignorance about
whether the prosecutions in fact overlapped begs the
question of whether it undertook the proper investiga-
tion before instigating the federal prosecution. Thus, we
urge the government to look into the matter, and act
accordingly if Fletcher’s federal convictions do indeed
22 No. 08-3195
run afoul of the Petite policy, which serves an
important function in “protecting the citizen from any
unfairness that is associated with successive prosecu-
tions based on the same conduct.” Rinaldi, 434 U.S. at
27; see id. at 29 n.14 (quoting an Attorney General’s obser-
vation that in the area of state and federal prosecu-
tions for similar conduct “those of us charged with law
enforcement responsibilities have a particular duty to
act wisely and with self-restraint”).2
Given the established precedent that adherence to the
Petite policy is neither constitutionally required nor does
it create an enforceable right for a defendant, we likewise
reject Fletcher’s due process and equal protection chal-
lenges. Both are grounded in the alleged Petite policy
violation, and neither of his arguments provide
grounds for us to revisit our settled holding. Fletcher’s
undeveloped equal protection claim also does not
survive when construed as an accusation of selective
prosecution. To succeed, it would be necessary for
Fletcher to show that he was both singled out for pros-
ecution where others were not and that the selection
was based on an impermissible ground, such as race or
religion. United States v. Darif, 446 F.3d 701, 708 (7th Cir.
2006). Despite a bare assertion that it is “arbitrary and
irrational” that some individuals may avoid prosecution
if the Petite policy is adhered to, Fletcher produces no
evidence that he was singled out or that his prosecution
2
We expect that the government will keep us apprised of
the results of its investigation into the potential Petite violation.
No. 08-3195 23
was otherwise unlawful. See Mitchell, 778 F.2d at 1277(rejecting defendant’s claim of selective prosecution
based on alleged Petite policy violation).
Fletcher next claims that his due process rights were
violated when investigating officers failed to preserve
allegedly exculpatory evidence. At the close of the gov-
ernment’s case-in-chief, the district court denied
Fletcher’s oral motion for a judgment of acquittal based
on the alleged failure to preserve evidence. Fletcher
bases his claim on the officers’ handling of the digital
evidence obtained when they executed the search warrant
in his home. During its search, the government seized a
computer, a Fuji digital camera, three memory cards
from the camera, and many compact discs. One of the
camera memory cards was in Fletcher’s pocket. Although
officers wore gloves during the search to preserve
possible trace evidence, later when they examined the
seized evidence they did not wear gloves or attempt to
preserve fingerprints or other trace evidence on the
surface of the seized items. When questioned at trial
about the failure to preserve possible trace evidence,
the lead detective explained that in light of Heather’s
accusations that Fletcher had taken the photographs
and committed the sexual abuse there was no need to
preserve possible trace evidence. In his words, the case
was not a “who-did-it type case.”
At trial, Fletcher presented expert testimony from
Wayne Lapen, a former officer with the Peoria Police
Department who helped found that department’s Cyber
Crimes Unit. Officer Lapen opined that the officers in-
24 No. 08-3195
volved should have collected trace and fingerprint evi-
dence “as a matter of course” and that their failure to
do so “compromised” the seized evidence.
When a defendant alleges, like Fletcher, that the gov-
ernment failed to preserve potentially exculpatory evi-
dence, we apply the standard articulated in Arizona v.
Youngblood, 488 U.S. 51 (1988). Youngblood applies when, as
here, the government failed to preserve evidence that
“could have been subjected to tests, the results of which
might have exonerated the defendant.” Youngblood, 488
U.S. at 57 (emphasis added); see also United States v. Kimoto,
588 F.3d 464, 474-75 (7th Cir. 2009) (citing Youngblood
in articulating applicable inquiry for a claim that the
government destroyed potentially useful information
versus a Brady claim of withholding exculpatory evi-
dence). In that situation, there is no denial of due process
“unless a criminal defendant can show bad faith on the
part of the police.” Youngblood, 488 U.S. at 57-58. Thus,
Fletcher must show: (1) bad faith by the government,
(2) the exculpatory nature of the evidence was apparent
before its destruction, and (3) that he could not obtain
the same evidence anywhere else. Kimoto, 588 F.3d at
475; Hubanks v. Franks, 392 F.3d 926, 931 (7th Cir. 2004)
(citing Youngblood, 488 U.S. at 58).
Fletcher’s argument fails on both the first and second
prongs. As for showing bad faith, Fletcher demonstrates
at best that the government may have been careless
when officers failed to consider the possibility that po-
tential trace evidence may have been useful to
Fletcher’s defense. As the district court recognized, it
No. 08-3195 25
was inappropriate for the government to jump to
the conclusion that the accusations against Fletcher elimi-
nated the possibility that someone else in Fletcher’s
house committed the crimes. But bad faith requires more
than carelessness, it requires a “conscious effort to sup-
press exculpatory evidence.” United States v. Chaparro-
Alcantara, 226 F.3d 616, 624 (7th Cir. 2000) (quoting Jones
v. McCaughtry, 965 F.2d 473, 477 (7th Cir. 1992)). Fletcher
presents no evidence of such an effort; instead, he asks
us to presume that the government’s failure to anticipate
that he would argue that someone else committed the
crimes equates to bad faith on its part. We are unwilling
to so. Although we are disappointed by the govern-
ment’s failure to preserve all of the evidence that may
have assisted Fletcher, he has not shown that its failure
to do so here amounted to a willful effort to hide
helpful evidence.
Likewise, there is no indication that the government
knew that there may have been exculpatory evidence on
the digital media before it handled the seized items
without gloves. Indeed, even now nothing in the record
suggests that there were actually fingerprints that would
have exculpated Fletcher. Despite Fletcher’s attempt to
prove at trial that other individuals took the images
and video and put them on his computer, he presented
little evidence to support this theory. The trial testimony
supported the conclusion the government made when
it first seized the evidence: that the digital media, found
in his home and his own pants pocket, was created by
and belonged to Fletcher. At worst, the government
assumed prematurely that Heather was telling the truth
26 No. 08-3195
about what transpired at Fletcher’s home and failed to
preserve evidence that may have supported a different
conclusion. Nothing about this assumption suggests
the government actually knew beforehand that exculpa-
tory “trace” evidence may have been on the seized
items—this conclusion is buttressed by the fact that the
record still fails to support the notion that such trace
evidence would have exonerated Fletcher. Thus, the
district court did not clearly err by denying Fletcher’s
motion for judgment of acquittal based on the handling
of the evidence. See Kimoto, 588 F.3d at 490-91.
That leaves Fletcher’s claim that the district court erred
by refusing to dismiss a particular juror, who served only
as an alternate, for cause. After seating the twelve regular
jurors, the court called eight others for consideration as
alternates. One of these individuals revealed that she
worked as an information systems technician for the
Galesburg, Illinois Police Department and that two to
three years earlier she had taken a five-day computer
forensics class from the government’s computer expert
James Feehan. Fletcher moved to strike the juror based
on her “relationship with Feehan.” The district court
denied Fletcher’s request, reasoning that the five-day
course did not provide an appropriate basis to strike
the juror for cause. Neither party exercised a peremptory
challenge. The individual was seated as an alternate,
but did not serve on the regular jury, which remained
intact throughout trial and deliberations.
Fletcher now maintains that we should presume that
the alternate juror was biased against him because she
No. 08-3195 27
was a “former student” of Feehan and because she
worked for the Galesburg Police Department. Fletcher
contends that her affiliation with law enforcement ren-
dered her incapable of fairly considering his defense
that officers mishandled the evidence in his case.
Notably, he fails to mention that she served only as an
alternate until his reply brief, where he cursorily
contends that it should make no difference whether
she was actually empaneled or not.
Because of the district court’s ability to evaluate juror
credibility during voir dire, we accord great deference to
the court’s ruling on a challenge for cause. United States
v. Ray, 238 F.3d 828, 837 (7th Cir. 2001). Moreover, we
will overturn a conviction based on the district court’s
refusal to remove a juror only if the defendant can show
prejudice. See United States v. Vega, 72 F.3d 507, 512 (7th
Cir. 1995). We see no abuse of discretion in the district
court’s conclusion that the juror’s connection to Feehan
was too attenuated to support a dismissal for cause.
Indeed, we are hard-pressed to understand why we
would, as Fletcher urges, presume “implied bias” on this
record. We doubt that the juror’s enrollment in a five-day
course some two to three years prior so connects her to
Feehan that we would disbelieve her assurances that
she could fairly view the evidence. And her employment
for the Galesburg Police Department alone does not, as
Fletcher suggests, imply an unacceptable degree of bias.
United States v. Polichemi, 219 F.3d 698, 704 (7th Cir.
2000) (“[G]overnment employment alone is not, and
should not be, enough to trigger the rule under which an
employee is disqualified from serving as a juror in a
28 No. 08-3195
case involving her employer.”). Finally, even if the con-
nections to law enforcement were troubling, Fletcher
cannot demonstrate prejudice from the alternate juror’s
mere presence at his trial. She did not assist in delibera-
tions or deciding the case, and Fletcher has presented
nothing to substantiate his claim that her very presence
“tainted” the verdict. Cf. id. at 705 (no reversible error
when juror who should have been stricken for cause
was instead excused through peremptory challenge
and thus did not decide case). The district court did not
abuse its discretion by seating the juror in question as
an alternate.
III.
For the foregoing reasons, we A FFIRM Fletcher’s con-
victions in all respects.
2-10-11