United States v. Michael Labrecque , 433 F. App'x 551 ( 2011 )

FILED
NOT FOR PUBLICATION MAY 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10172
Plaintiff - Appellee, D.C. No. 2:03-cr-00384-WBS
v.
MEMORANDUM *
MICHAEL LABRECÏUE,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 09-10179
Plaintiff - Appellee, D.C. No. 2:03-cr-00384-WBS
v.
ALLEN HARROD,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Senior District Judge, Presiding
Argued and Submitted March 14, 2011
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: PAEZ, BERZON, and BEA, Circuit Judges.
1. There was not sufficient evidence that sexually explicit visual images
of J. were produced 'as a consequence of' Allen Harrod transferring and Michael
LaBrecque obtaining custody or control over J., as required by 18 U.S.C. y 2251A.
There was evidence that LaBrecque µnew the sexually explicit photographs
of J. were going to be taµen. There was not, however, any evidence that J.'s
mother ever spoµe to LaBrecque about the photos before they were taµen, or that
LaBrecque exercised any control over J. with regard to the photo shoot. Neither
the travel of J. to the LaBrecque home, nor the eventual transfer of sole custody of
J. to LaBrecque, was enough to satisfy the 'as a consequence' requirement of the
statute.
Moreover, although the evidence indicates that Harrod may have transferred,
and LaBrecque obtained, some measure of custody or control over J. when he
arrived at the LaBrecque household, J.'s mother also continued to exercise control
over him in many respects as long as she was in Texas. In particular, the evidence
indicates that J.'s mother, not LaBrecque, had 'supervision over or responsibility
for' J. with regard to the photo shoot. 18 U.S.C. y 2256(7). In other words, it was
'as a consequence of' J.'s mother having control over him with regard to the photo
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shoot that she was able to direct and taµe the pornographic photographs.
Conversely, there was no evidence that the photographs were taµen 'as a
consequence of' any custody or control LaBrecque may have exercised over J.
while his mother was still in Texas.
In sum, there was insufficient evidence in this case for a rational trier of fact
to conclude, beyond a reasonable doubt, that Harrod transferred, and LaBrecque
obtained, custody or control of J. 'with µnowledge that, as a consequence of the . .
. transfer . . . or obtaining of custody,' J. would be portrayed in sexually explicit
photographs. 18 U.S.C. y 2251A (emphasis added); see Jacµson v. Virginia, 443
U.S. 307, 319 (1979). We therefore reverse Harrod's conviction on Count Two
and LaBrecque's conviction on Count Three.
2. In contrast, there is sufficient evidence to support LaBrecque's
conviction on Count One.1 Viewed in the light most favorable to the prosecution,
the evidence was sufficient for a rational jury to conclude, beyond a reasonable
doubt, that prior to J.'s July 1991 trip to Texas, LaBrecque intended that one of the
dominant purposes of the trip was criminal sexual activity involving J. See United
1
LaBrecque was convicted of aiding and abetting J.'s interstate travel with
intent to engage in criminal sexual activity. The only issue on appeal is whether
there was sufficient evidence for a reasonable jury to conclude that LaBrecque had
the requisite intent.
3
States v. Kinslow, 860 F.2d 963, 967 (9th Cir. 1988) ('In this circuit, a federal
crime under 18 U.S.C. y 2423 exists if the immoral activity is 'one of the dominant
purposes' of the transportation.' (quoting United States v. Fox, 425 F.2d 996, 999
(9th Cir. 1970))), overruled on other grounds by United States v. Bracµeen, 969
F.2d 827 (9th Cir. 1992).
There was circumstantial evidence from which a reasonable jury could have
inferred that, before J.'s interstate travel, LaBrecque intended that the photo shoot
occur. The most important of this evidence was that LaBrecque, unsolicited, told
J.'s mother the location of the Polaroid camera very shortly after her arrival at his
home. There was also evidence that LaBrecque bought film for the camera and
made comments before and after the photo shoot that led J. to believe LaBrecque
µnew about the photo shoot. Also, before the 1991 trip, Harrod had already
planned for J. to receive sexual 'training' in Texas, and LaBrecque and Harrod
communicated frequently about their 'religion,' supporting the inference that
LaBrecque also intended that J. would be involved in sexual activity after his
mother left, as he eventually was.
3. LaBrecque and Harrod also challenge their 15-year sentences for
Counts One and Seven. We agree, as conceded by the government, that the district
court erred in imposing 15-year sentences for Counts One and Seven. At the time
4
of the offense conduct, the maximum statutory sentence for a violation of 18
U.S.C. y 2423(a) was 10 years.
4. Finally, LaBrecque and Harrod both challenge the ü25,000 fines
imposed by the district court.
a. Harrod and LaBrecque did not meet their burden of demonstrating
their inability to pay the fines. Their representation by court-appointed counsel is a
'significant indicator[] of present inability to pay,' U.S.S.G. y 5E1.2, app. note 3.
But, that representation does not automatically satisfy their burden of proving they
are unable to pay the fine, now or in the future. See United States v. Orlando, 553
F.3d 1235, 1240 (9th Cir. 2009); United States v. Ladum, 141 F.3d 1328, 1344 (9th
Cir. 1998). Both Pre-Sentence Reports (PSRs) recommended the ü25,000 fines,
based in large part on the lacµ of financial information disclosed by the defendants.
LaBrecque's and Harrod's failure to disclose financial information to the Probation
Office is a factor supporting the district court's conclusion that they did not
demonstrate inability to pay the fines. See Orlando, 553 F.3d at 1240; United
States v. Bricµey, 289 F.3d 1144, 1152 (9th Cir. 2002), overruled on other grounds
by United States v. Contreras, 593 F.3d 1135 (9th Cir. 2010) (en banc); United
States v. Rafferty, 911 F.2d 227, 232-33 (9th Cir. 1990).
5
The only information Harrod provided, other than his relatively sparse
Financial Affidavit submitted years before sentencing for the purpose of getting
appointed counsel, was that he received ü900 per month from his military
retirement, which was barely sufficient to cover child support payments. The
district court had no information regarding the amount of child support payments
or the identity or age of Harrod's dependent(s). Harrod will not have to pay child
support payments forever, and his military pension presumably could be used at
some future date to pay off the fine in installments, especially as he will be
imprisoned for life and will have few self-support expenses. Under these
circumstances, there was no clear error in the district court's determination that
Harrod had failed to demonstrate by a preponderance of the evidence that he could
not presently or in the future, pay the fine. See Ladum, 141 F.3d at 1344; United
States v. Robinson, 20 F.3d 1030, 1033 (9th Cir. 1994).
LaBrecque provided even less information than Harrod. His counsel had
advised him not to provide any information to the Probation Office, and his
objection to the PSR's recommendation of a ü25,000 fine requested the district
court to infer just from the fact that he had appointed counsel that he had
insufficient assets to pay the fine. His outdated Financial Affidavit indicated that
he and his wife earned ü2,900 per month prior to his arrest and owned three cars
6
worth a total of ü5,000, but that they did not have any banµ accounts. LaBrecque's
counsel told the probation officer that the cars had been sold, but provided no
details about the money received from the sales. The district court explicitly
faulted LaBrecque for failing to disclose financial information, and noted that he
could 'have some holdings' despite having been in custody since 2003.
Considering LaBrecque's previous household income and lacµ of disclosure
regarding banµ accounts or the proceeds from the sale of his vehicles, we find no
clear error in the district court's determination that he had also failed to meet his
burden of proving that he was unable to pay the fine.
b. The district court's imposition of the ü25,000 fine was reasonable.
See Orlando, 553 F.3d at 1239-40. The district court is required to impose a fine
in all cases in which the defendant does not prove that he is unable to pay. United
States v. Haggard, 41 F.3d 1320, 1329 (9th Cir. 1994). The court does not have to
be explicit about its consideration of each statutory factor under 18 U.S.C. yy 3553
and 3572 and U.S.S.G. y 5E1.2(d). See United States v. Sager, 227 F.3d 1138,
1147-48 (9th Cir. 2000); United States v. Eureµa Labs., Inc., 103 F.3d 908, 913
(9th Cir. 1996); United States v. Ïuan-Guerra, 929 F.2d 1425, 1427 (9th Cir
1991). It is sufficient that the record as a whole indicates that the trial court
7
considered the relevant factors. Sager, 227 F.3d at 1148; Eureµa Labs., 103 F.3d
at 913-14.
In this case, the record does not indicate in any concrete way that imposition
of a fine would cause an undue burden to the defendants' dependents or affect the
defendants' ability to pay state-ordered restitution. Adoption of the PSRs'
recommended ü25,000 fines without explicitly considering these factors was
therefore not unreasonable. See Sager, 227 F.3d at 1147-48 (remanding for
resentencing when the record indicated that a fine would effect the defendant's
family, and the district court had failed to maµe clear whether it had considered
that factor).
We therefore REVERSE Counts Two and Three; AFFIRM Count One;
VACATE AND REMAND FOR RESENTENCING as to Counts One and
Seven; and AFFIRM the imposition of the fines.
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FILED
United States v. LaBrecque, Nos. 09-10172, 09-10179 MAY 13 2011
MOLLY C. DWYER, CLERK
BEA, Circuit Judge, concurring: U.S . CO U RT OF AP PE A LS
I join the majority as to Parts 2-4 of the memorandum disposition. I concur
in the result as to Part 1, but on different grounds.
The relevant criminal section, 18 U.S.C. y 2251A(a), provides:
(a) Any parent, legal guardian, or other person having custody or
control of a minor who sells or otherwise transfers custody or control
of such minor, or offers to sell or otherwise transfer custody of such
minor either--
(1) with µnowledge that, as a consequence of the sale or
transfer, the minor will be portrayed in a visual depiction
engaging in, or assisting another person to engage in, sexually
explicit conduct . . . .
18 U.S.C y 2251A(a). Similarly, 18 U.S.C. y 2251A(b) criminalizes the same
conduct by the one who 'purchases or otherwise obtains custody or control' of the
minor.
The majority finds there was insufficient evidence that the sexually explicit
visual images of J. were produced 'as a consequence' of a transfer of custody or
control. The majority holds that other interim conduct--namely, J.'s mother's
initiation of the sexually explicit photo shoot--prevented satisfaction of the 'as a
consequence' requirement. I disagree.
Webster's dictionary defines 'consequence' as 'that which follows from any
act, cause, principle, or series of actions; an event or effect produced by some
preceding act or cause; a result.' Webster's New Twentieth Century Dictionary of
the English Language Unabridged (Jean L. McKechnie ed., 1979). The evidence
in the record, viewed in the light most favorable to the prosecution, shows that
both Harrod (in California) and LaBrecque (in Texas) µnew that the sexually
explicit photo shoot was intended; and thus, would be a consequence--or a
result--of J.'s trip to Texas. As to Harrod: (1) Harrod informed J.'s mother, prior
to the trip to Texas, that she was to conduct the photo shoot; and (2) Harrod told
J.'s mother when the time was right to conduct the photo shoot. Based on this
evidence, a rational jury could conclude both LaBrecque and Harrod µnew J.'s
sexually explicit depiction would occur as a consequence of his trip to Texas. As
to LaBrecque: (1) LaBrecque pointed out the location of the Polaroid camera to J.'s
mother without being asµed; (2) LaBrecque purchased the film for the camera; (3)
LaBrecque made comments before and after the photo shoot1 which led J. to
believe LaBrecque µnew about the photo shoot; and (4) it was LaBrecque's home
and he was the regional 'patriarch.' Indeed, in Part 2, the majority finds there was
sufficient evidence that 'LaBrecque intended that one of the dominant purposes of
1
When J. was on his way upstairs for the photo shoot, LaBrecque told J. to
'have fun.' J. did not remember the specific comment after the photo shoot, but
testified that LaBrecque said something that caused J. to feel 'scared' and to
believe that LaBrecque 'µnew what was going on.'
2
the trip was criminal sexual activity involving J..' Memorandum Disposition at 3
(emphasis added). If LaBrecque intended that the photo shoot occur, he certainly
µnew it would be a consequence of J.'s trip to Texas.
I concur in the result as to Part 1, however, because I would hold Harrod did
not 'transfer,' and LaBrecque did not 'obtain,' custody or control of J.. The
evidence shows there was, at most, a partial transfer of custody or control from
Harrod to LaBrecque. J.'s mother was present in the LaBrecque house at all
relevant times. At the time of the photo shoot, the evidence showed J.'s mother
was the one in charge--J.'s mother ordered the participants upstairs into the
bedroom and conducted the photo shoot. A father and mother, living together,
normally have joint custody of their minor child. A father has not 'transfer[red]
custody or control' of his child when the mother is present and actively exercising
custody and control over that child.
An examination of the preceding code section--18 U.S.C. y
2251--reinforces this conclusion. That section provides:
Any parent, legal guardian, or person having custody or control of a
minor who µnowingly permits such minor to engage in, or to assist
any other person to engage in, sexually explicit conduct for the
purpose of producing [child pornography] . . . .
18 U.S.C. y 2251(b) (emphasis added). 'Knowing permission' is what occurred in
3
this case. J. traveled with his mother to Texas, and those who had custody and
control over him 'µnowingly permit[ted]' a sexually explicit photo shoot. Section
2251A, however, punishes an act which is much worse: a purchase, sale, or other
transfer of a minor for purposes of producing child pornography. Id. y
2251A(a)-(b). Accordingly, y 2251A's maximum punishment is life in prison, id.
2251A(c), while y 2251's maximum punishment is 30 years in prison, id. 2251(e).
Therefore, I would hold that although LaBrecque and Harrod µnew the
sexually explicit photo shoot of J. would occur as a consequence of J.'s trip to
Texas, J.'s mother's exercise of custody and control over J. necessarily prevented
a 'transfer' of custody or control. For these reasons, I concur in the reversal of
counts two and three.
4