United States v. Darren Henry , 403 F. App'x 137 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3804
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United States of America, *
*
Plaintiff-Appellee, * Appeal from the United States
* District Court for the
v. * District of North Dakota.
*
Darren Michael Henry, * [UNPUBLISHED]
*
Defendant-Appellant. *
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Submitted: October 22, 2010
Filed: November 30, 2010
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Before MURPHY, BEAM, and BENTON, Circuit Judges.
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PER CURIAM.
Darren Michael Henry appeals his convictions for sexual exploitation of a
minor and possession of material involving the exploitation. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.
Suspecting that Henry was involved in an inappropriate relationship with minor
S.L., her mother contacted law enforcement. The North Dakota Bureau of Criminal
Investigation (“BCI”) seized Henry’s computer. Forensic analysis revealed sexually
explicit images of S.L.; accompanying data indicated that at least one image was taken
with a Canon PowerShot SX100 camera. After obtaining another warrant, BCI seized
a camera of this model from Henry’s home.
A two-count indictment charged Henry with sexual exploitation of a minor, 18
U.S.C. §§ 2251(a), 2251(e), and possession of material involving sexual exploitation
of a minor, 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2). The jury convicted on both
counts. The sexual exploitation count carried a 180-month mandatory minimum
sentence. 18 U.S.C. § 2251(e). The district court1 sentenced Henry to 180 months’
imprisonment, 60 months’ supervised release, and a $200 special assessment.
Both crimes have an interstate or foreign commerce element. 18 U.S.C. §§
2251(a), 2252(a)(4)(B). Henry challenges the sufficiency of the evidence that the
electronic devices he used moved in interstate or foreign commerce. “We ‘review[]
the sufficiency of the evidence de novo, viewing the evidence in the light most
favorable to the verdict. Reversal of a conviction is proper only if no reasonable jury
could have found the defendant guilty beyond a reasonable doubt.’” United States v.
Pliego, 578 F.3d 938, 941 (8th Cir. 2009) (quoting United States v. Kent, 531 F.3d
642, 651-52 (8th Cir. 2008)).
At trial, a BCI Special Agent testified that he dismantled the computer and
photographed its hard drive, which stored the sexually explicit images. A label on the
hard drive indicated that it was manufactured in Singapore. The Agent also testified
that he examined a tag on the camera, which indicated Japan as its place of
manufacture. The district court received the camera and a photograph of the hard
drive in evidence. While the camera and hard drive could conceivably have acquired
the country labels without moving in foreign commerce, the government receives
‘“the benefit of all reasonable inferences.’” Pliego, 578 F.3d at 941 (quoting United
States v. Termini, 992 F.2d 879, 881 (8th Cir. 1993)). A reasonable jury could
1
The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota. The Honorable Daniel L. Hovland stepped down as
Chief Judge on October 31, 2009.
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conclude beyond a reasonable doubt that the camera and hard drive bore the country
labels because they originated abroad.
Henry also argues that the district court should have informed the jury of the
exploitation count’s mandatory minimum. “‘We review a district court’s formulation
of jury instructions for abuse of discretion and consider whether the instructions
correctly state the applicable law.’” Pliego, 578 F.3d at 942 (quoting United States
v. Walker, 428 F.3d 1165, 1171 (8th Cir. 2005). Henry points to United States v.
Polizzi, 549 F. Supp. 2d 308 (E.D.N.Y. 2008), which like this case involved child
pornography. After initially refusing to instruct on the mandatory minimum, the
district court eventually granted a new trial, reasoning that given the defendant’s
specific characteristics, the Sixth Amendment entitled the defendant to have the jury
informed of the applicable sentence. Polizzi, 549 F. Supp. 2d at 440, 446. On appeal,
the Second Circuit vacated, holding that while instructing juries on mandatory
minimum sentences may be appropriate under some circumstances, the defendant
there had no right to a new trial. United States v. Polouizzi,2 564 F.3d 142, 159-63 (2d
Cir. 2009).
In this circuit, “[t]he court need not instruct the jury that the defendant will
receive a mandatory sentence if he or she is found guilty.” United States v. Thomas,
895 F.2d 1198, 1200 (8th Cir. 1990) (citing United States v. Goodface, 835 F.2d 1233,
1236 (8th Cir. 1987)). After Thomas, the Supreme Court recognized that informing
the jury of the consequences of a verdict may be appropriate under “limited
circumstances.” Shannon v. United States, 512 U.S. 573, 587 (1994). Henry has not
shown that his case involves such circumstances.
Accordingly, we affirm.
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2
The captions in the district court and the Second Circuit spelled the
defendant’s name differently.
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