
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-1709                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               CHRISTOPHER B. CARROLL,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]                                                 ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                              _________________________               M.   Kristin  Spath,  Assistant  Federal  Defender,  Federal               ___________________          Defender Office, on brief for appellant.               Paul  M. Gagnon, United  States Attorney, and  Jean B. Weld,               _______________                                ____________          Assistant United States Attorney, on brief for appellee.                              _________________________                                   February 3, 1997                              _________________________                    SELYA, Circuit Judge.   In this  case a jury  convicted                    SELYA, Circuit Judge.                           _____________          defendant-appellant Christopher B. Carroll of violating a federal          child pornography statute.  Following the imposition of sentence,          Carroll appeals.   The  key question  involves an elusive  comma.          Having found the comma, we affirm.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                    In the summer of 1995, the appellant separated from his          wife, Tammy.   While sorting out her  husband's personal effects,          Tammy  discovered  two  rolls  of  undeveloped  film.    The film          contained 46  photographs  of the  appellant's adolescent  niece,          Brittany.1    Many  of  these photographs  depicted  Brittany  in          various states of undress, wearing her mother's lingerie, holding          sex  toys  and  inserting  them  in  body  cavities,  and  posing          suggestively.  After an  investigation spearheaded by the Federal          Bureau of Investigation (FBI),  the government concluded that the          appellant  took  these  photographs  on  January  8,  1995  (when          Brittany  was 13  years of  age).   Carroll's indictment,  trial,          conviction, and sentencing followed.                                         II.                                         II.                                         ___                                       Analysis                                       Analysis                                       ________                    In this  venue, the appellant advances  two assignments          of error.  We discuss them in sequence.                                        ____________________               1Brittany is a pseudonym which we employ in  compliance with          the  confidentiality  requirements  of  18  U.S.C.     3509(d)(1)          (1994).                                          2                                          A.                                          A.                                          __                             Sufficiency of the Evidence                             Sufficiency of the Evidence                             ___________________________                    The statute of conviction provides in relevant part:                         Any  person  who   [1]  employs,   uses,                    persuades, induces, entices,  or coerces  any                    minor  to engage in,  or [2] who  has a minor                    assist any other person  to engage in, or [3]                    who  transports any  minor  in 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  purpose of                    producing  any  visual   depiction  of   such                    conduct  shall be  punished  as provided  [by                    law] if  such person  knows or has  reason to                    know  that  such  visual  depiction  will  be                    transported in interstate or foreign commerce                    or  mailed, or if  such visual  depiction has                    actually  been  transported in  interstate or                    foreign commerce or mailed.          18 U.S.C.   2251(a)(1994) (arabic numerals supplied; propriety of          including  bracketed  comma  to  be discussed  infra).    In this                                                         _____          instance  the   government  accused  Carroll,  under   the  first          statutory   category,  of   using  or   persuading  Brittany   to          participate in  making sexually  explicit depictions.   The judge          instructed the jurors that,  in order to convict, they  must find          that  the government  proved three  elements beyond  a reasonable          doubt:   (1) that the defendant "knowingly used or persuaded [the          minor]  to engage in sexually explicit conduct for the purpose of          producing a visual depiction  of that conduct"; (2) that  "at the          time  such conduct was engaged  in, the defendant  knew that [the          minor] was under  the age  of eighteen years";  and (3) that  the          defendant  "knew or had reason to know that such visual depiction          would  be transported  in  interstate commerce."   The  appellant                                          3          claims  that the  government  did not  prove  the last  of  these          elements and that the court therefore erred in denying his motion          for judgment of acquittal.                    A trial court must  enter a judgment of acquittal  in a          criminal case  if  "the evidence  is  insufficient to  sustain  a          conviction."  Fed.  R. Crim. P. 29(a).  We  afford de novo review          to Rule 29 determinations,  see United States v. Olbres,  61 F.3d                                      ___ _____________    ______          967,  970  (1st  Cir.), cert.  denied,  116  S.  Ct. 522  (1995),                                  _____  ______          employing a familiar  mantra:  "If the  evidence presented, taken          in the light  most flattering to  the prosecution, together  with          all  reasonable inferences  favorable to  it, permits  a rational          jury to find each essential element of the crime charged beyond a          reasonable doubt, then  the evidence is legally sufficient."  Id.                                                                        ___          In conducting this tamisage, we consider all the evidence, direct          and  circumstantial, and  resolve  all  evidentiary conflicts  in          favor of the verdict.  See United States v. Amparo, 961 F.2d 288,                                 ___ _____________    ______          290 (1st  Cir.), cert. denied,  506 U.S. 878 (1992).   Under this                           _____ ______          formula, the  evidence before  us suffices  to sustain  a finding          that  the  appellant  intended  to  transport  the   pornographic          depictions in  interstate commerce (and therefore  knew that they          would be so transported).                    The  government  sought   to  satisfy  the   interstate          commerce  element here  in  two ways,  both featuring  Brittany's          testimony.   One  approach  involved  the  intended  use  of  the          sexually  explicit  photographs.    According  to  Brittany,  the          appellant discussed with her  his plan to scan the  images into a                                          4          friend's computer  and distribute  them  on the  Internet.   This          testimony,   if   believed,   proved   the   government's  point.          Transmission  of   photographs  by  means  of   the  Internet  is          tantamount  to moving  photographs  across state  lines and  thus          constitutes transportation  in interstate commerce.   See  United                                                                ___  ______          States v. Thomas, 74  F.3d 701, 706-07 (6th Cir.),  cert. denied,          ______    ______                                    _____ ______          117 S. Ct. 74 (1996); United States v. Maxwell, 42  M.J. 568, 580                                _____________    _______          (U.S.A.F.C.A.  1995).  And here, since the photographs were taken          in New Hampshire but the  computer that Carroll allegedly planned          to use was  located in  Massachusetts, interstate  transportation          perforce  would  have occurred  when  the  appellant carried  the          fruits  of  his  labor  across  the  New  Hampshire  border  into          Massachusetts.                    The   government's   second   approach   involved   the          anticipated processing  of the  photographs.   Brittany testified          without  contradiction that Carroll told her he was going to take          the film to  Massachusetts to  be developed.   If believed,  this          testimony, in and of itself, would forge the requisite interstate          link.   See 18 U.S.C.   10 (1994) (defining "interstate commerce"                  ___          for  purposes of Title 18);  cf. Rodriguez v.  Clark Color Labs.,                                       ___ _________     _________________          921  F.2d 347,  349 (1st  Cir. 1990)  (indicating in  dictum that          knowing  mailing  of  undeveloped negatives  across  state  lines          satisfies interstate  commerce  element under  child  pornography          statutes).                    The   appellant  mounts  a   ferocious  attack  on  the          credibility  of  Brittany's testimony.    He  notes, among  other                                          5          things, that she did not mention the Internet connection when she          first testified; that, on  cross-examination, she originally said          that  her grandmother had told  her that Carroll  wanted to place          her pictures on the  Internet; and that she changed  her story on          redirect  examination,  asserting for  the  first  time that  the          appellant had mentioned  the Internet  to her.   He also  assails          Brittany's  account  of  his  supposed plan  for  developing  the          prints, stressing  that she  did not make  this revelation  until          shortly before the trial.                    For purposes of Rule  29, the government's proof passes          muster.  The appellant's criticisms of Brittany's testimony go to          the weight of the evidence, not to its sufficiency, and therefore          were properly left to  the jury.  Some degree of inconsistency is          not  surprising when  a  minor testifies  about traumatic  events          instigated   by  a   close   relative.     Here,  moreover,   the          inconsistencies came in response to a series of leading questions          by   defense   counsel;  on   redirect,   after   refreshing  her          recollection by perusing  reports of interviews she  had given to          an FBI agent, Brittany's memory cleared.  In these circumstances,          a  fair-minded  jury  could  easily believe  that  her  refreshed          recollection  represented  an  accurate account  of  the relevant          events  and that Carroll took  the photographs with the intention          either to have them developed out of state, or to put them on the          Internet, or both.                    This  conclusion is reinforced  by other  evidence that          supports  Brittany's  testimony  on  redirect  examination.   The                                          6          record suggests,  for example, that the appellant  and his friend          (Doug  Allen) had  in  the past  attempted  to scan  pornographic          images  into Allen's computer, thus permitting  the jury to infer          that  the  two  men knew  how  to  circulate  photographs on  the          Internet and might want to  put Brittany's likenesses to  similar          use.   Allen also testified that  he and Carroll intended to form          an on-line  dating service  utilizing both pictures  and personal          messages.   Carroll apparently knew about a similar service being          offered  in New  Hampshire  which depicted  topless females  with          black bars across their faces to conceal their identities.  Given          this background, Brittany's testimony  that Carroll told her that          he would  put her  picture on the  Internet with  a little  black          strip across her eyes  could have suggested to a  thoughtful jury          that he  intended  to use  the sexually  explicit photographs  to          promote his embryonic dating service.                    We  have said  enough  on this  score.   In  the  final          analysis,  the appellant's argument  boils down to  a plaint that          the   jury   misjudged    Brittany's   veracity.      Credibility          determinations are, of course, squarely within the jury's domain.          See United States  v. Romero, 32  F.3d 641, 646 (1st  Cir. 1994);          ___ _____________     ______          United  States v. O'Brien, 14  F.3d 703, 706-07  (1st Cir. 1994).          ______________    _______          Eyewitness  testimony is  rarely seamless,  and appellate  courts          ordinarily should  decline invitations  to second-guess  a jury's          considered decision about whether to  credit particular testimony          despite the fact  that it  contains inconsistencies.   This  case          falls comfortably within the sweep of that generality.  Resolving                                          7          evidentiary conflicts  and drawing  reasonable inferences  in the          government's favor, as the Rule 29 standard requires, see Olbres,                                                                ___ ______          61  F.3d at 970,  the evidence is  adequate to  support a finding          that the  appellant intended  to transport the  sexually explicit          photographs in interstate commerce.  No more is exigible.                                          B.                                          B.                                          __                                  The Judge's Charge                                  The Judge's Charge                                  __________________                    The appellant's next  point is grammatically intriguing          but  legally impuissant.   He  posits that  a trial judge  has an          obligation to instruct the  jury on every element of  the offense          of   conviction,  that   flouting  this   obligation  constitutes          reversible error, and that  such a lapse occurred  here.  In  the          circumstances of this case, we agree with the first two-thirds of          the appellant's  triangular hypothesis, see, e.g.,  United States                                                  ___  ____   _____________          v. DiRico,  78 F.3d 732, 735  (1st Cir. 1996), but  we take issue             ______          with   his   conclusion  that   the   charge   omitted  necessary          information.                    In enumerating  the elements of the  offense, the judge          refused to  include a requirement  that the government  prove the          defendant  knowingly persuaded  the minor  to engage  in sexually          explicit conduct "with the intent that such minor engage in" such          conduct for the purpose of producing a  visual depiction thereof.          It  is  to  this  omission  that  the  appellant  assigns  error,          asserting  that section 2251(a) must  be read so  that the phrase          quoted  above modifies  all three  types of  actions criminalized                                          8          under  the statute,  namely,  (1)  employing, using,  persuading,          inducing, enticing,  or coercing  a minor  to engage  in sexually          explicit  conduct (the  "use" category,  under which  Carroll was          charged); (2) having a  minor assist another person to  engage in          such conduct (the "assistance"  category); and (3) transporting a          minor in  interstate or  foreign  commerce (the  "transportation"          category).  This assertion depends almost entirely on the absence          of  punctuation immediately  following the  quoted phrase;  it is          only the putative lack of a comma that makes arguable  the theory          that  the  phrase  modifies  the trailing  phrase  "any  sexually          explicit conduct" and,  thus, applies to all  three categories of          proscribed behavior.2                    For reasons that will appear, the district court bought          into the proposition that  no comma lurked in the  critical place                                        ____________________               2A graphic iteration of a portion of the statute may help to          illustrate the point:                         Any  person  [1]   who  employs,   uses,                    persuades, induces, entices,  or coerces  any                    minor  to engage in,  or [2] who  has a minor                    assist any other person  to engage in, or [3]                    who  transports any  minor  in interstate  or                    foreign  commerce,  or  in  any  Territory or                    Possession  of  the United  States,  with the                                                         ________                    intent  that  such  minor  engage  in[,]  any                                                              any                    _____________________________________                    sexually explicit conduct for the  purpose of                    sexually explicit conduct for the  purpose of                    producing  any  visual   depiction  of   such                    producing  any  visual   depiction  of   such                    conduct. . . .                    conduct. . . .          18  U.S.C.    2251(a)  (arabic numerals,  underscoring, and  bold          facing supplied).   The issue  is whether the  underscored phrase          should  be  read as  accompanying the  passage  in bold  face, or          whether it should be considered a part of what we have termed the          third category of proscribed conduct (and, thus, does  not modify          the passage in bold face).  This depends, in part, on whether the          text contains the bracketed comma.                                          9          and  acted  upon  this   perception;  it  assumed  that  Congress          inadvertently omitted the comma,  read the statute as if  it were          there,  and confined the quoted  phrase to the  third category of          proscribed conduct  (transportation).3   We  review the  district          court's  solution  to this  enigma de  novo.   See  Strickland v.                                                         ___  __________          Commissioner,  Me. Dep't of Human  Servs., 96 F.3d  542, 545 (1st          _________________________________________          Cir.  1996)  (holding  that questions  of  statutory construction          receive nondeferential review).                    Insofar as we can  tell, the judge's underlying premise            that the statute did not contain a comma in  the critical place            arose because both  parties conceded as much below (as  they do          on  appeal); other  federal  courts had  accepted the  premise as          true, see, e.g.,  United States  v. Thomas, 893  F.2d 1066,  1068                ___  ____   _____________     ______          (9th Cir.), cert. denied, 498 U.S. 826 (1990); and the statute as                      _____ ______          printed  in updates  of the  United States Code  Annotated, e.g.,                                                                      ____          West Supp. 1996,  and as  rendered in at  least one  computerized          legal research  data base,  omitted the comma.   But  appearances          often are deceiving.   See  Aesop, The Wolf  in Sheep's  Clothing                                 ___         ______________________________          (circa 550 B.C.).  In point of fact, the authoritative version of          the statute does contain  the elusive comma.  Congress  added the          language in question by enacting Pub.  L. 99-628,   3, 100  Stat.          3510 (1986).   The text  of the  amendment, as  disclosed in  the                                        ____________________               3The court impliedly premised this interpretive rationale on          its power to "disregard the punctuation [contained in a statute],          or repunctuate, if need be, [in order] to render the true meaning          of  the statute."  United  States Nat'l Bank  v. Independent Ins.                             _________________________     ________________          Agents  of  Am.,  Inc.,  508  U.S.  439,  462  (1993)  (citations          ______________________          omitted).                                          10          Statutes  at Large, shows a  comma after "engage  in."  Conflicts          between the  text of a statute  as it appears in  the Statutes at          Large, on  one  hand,  and  in usually  reliable  but  unofficial          sources  such as the United  States Code Annotated,  on the other          hand, are  rare, but, when they  occur, the rendition of  the law          contained  in the Statutes at Large controls.4  See United States                                                          ___ _____________          Nat'l Bank v. Independent Ins. Agents of Am., Inc., 508 U.S. 439,          __________    ____________________________________          448 (1993).                    Having  made  the  determination that  section  2251(a)          actually contains (and thus is to be read with) a comma after the          phrase  "with the intent that  such minor engage  in," we readily          conclude that the district judge described the essential elements          of  the offense  correctly in  his jury  instructions.   With the          comma  in  place,  we  regard the  proper  interpretation  of the          statute as  self-evident.  Wherever possible,  statutes should be          construed in a commonsense manner, O'Connell  v. Shalala, 79 F.3d                                             _________     _______          170,  176 (1st Cir. 1996), honoring plain meaning, In re Thinking                                                             ______________          Machines  Corp.,  67 F.3d  1021,  1024-25  (1st Cir.  1995),  and          _______________          avoiding absurd or counterintuitive results, Sullivan v. CIA, 992                                                       ________    ___          F.2d 1249, 1252 (1st Cir. 1993).                    In  this   instance  the   phrase  in  question,   read          naturally, modifies only the  transportation category.  Any other          reading  would  defeat  the linguistic  parallelism  which  marks          section 2251(a) and would result in a curiously lopsided piece of                                        ____________________               4In all  events, recent versions  of the United  States Code          (as  opposed to the United States Code Annotated) include a comma          at the critical place.                                          11          legislation.5   Here, too,  a construction consistent  with plain          meaning  comports with  the  logic  of  the  statute.    One  who          persuades  a minor to engage in sexually explicit conduct, or who          has a minor assist another person in such conduct, commits an act          which  in and  of  itself is  worthy of  criminal  sanction.   By          contrast, one who transports a minor across state lines (no more,          no less) has done  nothing inherently wrong unless his  intent at          the time  is blameworthy.  On  that basis, the idea  that section          2251(a) embodies  an additional  scienter requirement  (having an          intent that  the minor  thereafter engage in  proscribed conduct)          solely  with reference  to  the transportation  category is  both          easily explicable and eminently sensible.  Cf. O'Connell, 79 F.3d                                                     ___ _________          at  176 (counselling courts to  examine "the statute  as a whole,          giving due weight to design, structure, and purpose as well as to          aggregate language").                    The   history  of   section   2251(a)   supports   this          interpretation.   Congress amended the law in 1986 to engraft the          transportation  category  (including  the disputed  phrase)  onto          section 2251(a).  Prior to this amendment, the use category, like          the  assistance  category,  required  proof  only  of  the  three          elements that the judge included in  his charge.  See Pub. L. 95-                                                            ___          225,   2(a),  92 Stat. 7 (1978).   To suggest, in  the absence of          any  confirmatory legislative  history, that  the 1986  amendment          added  a  new  intent element  to  both  the  use and  assistance                                        ____________________               5As  mentioned  earlier,   the  statute  criminalizes  three          separate  types of conduct, and  each category is  described in a          clause ending with the words "engage in."                                          12          categories,  instead of  merely  supplying  an additional,  self-          contained   category,   strains   credulity.      See   generally                                                            ___   _________          Passamaquoddy Tribe v.  State of  Me., 75 F.3d  784, 788-89  (1st          ___________________     _____________          Cir.  1996) (in  interpreting statutes,  courts should  take into          account preexisting statutory provisions).                    To  recapitulate, we  hold  that the  phrase "with  the          intent that such minor engage in"  sexually explicit conduct does          not apply  to the use  category of  section 2251(a).   It follows          that  the  trial  court's   instructions  accurately  limned  the          essential elements of the offense.                                         III.                                         III.                                         ____                                      Conclusion                                      Conclusion                                      __________                    We  need go no further.   Having dispatched the seeming          grammatical  anomaly, no  serious question  remains.   It clearly          appears  that  the  appellant   was  fairly  tried  and  lawfully          convicted.  Accordingly, the judgment below must be          Affirmed.          Affirmed.          ________                                          13
