                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-4416


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ANTHONY PALOMINO-CORONADO,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:12-cr-00287-RWT-1)


Argued:   September 17, 2015                Decided:   November 5, 2015


Before MOTZ, KING, and GREGORY, Circuit Judges.


Reversed and vacated by published opinion. Judge Gregory wrote
the opinion, in which Judge Motz and Judge King joined.


ARGUED: Joanna Beth Silver, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Baltimore, Maryland, for Appellant.    Kristi Noel
O’Malley, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee.  ON BRIEF: James Wyda, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant.   Rod J. Rosenstein, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
GREGORY, Circuit Judge:

     Anthony        Palomino-Coronado           was   convicted     of        knowingly

employing, using, persuading, inducing, enticing, or coercing a

minor in sexually explicit conduct, for the purpose of producing

a visual depiction of that conduct, in violation of 18 U.S.C.

§ 2251(a).     On appeal, Palomino-Coronado claims that there was

insufficient evidence to convict him and that the district court

improperly denied his motion for judgment of acquittal under

Federal Rule of Criminal Procedure 29.                We agree. 1



                                           I.

     In the early morning hours of May 3, 2012, Prince George’s

County     police       officers    were     called   to    a   home     in     Laurel,

Maryland, in response to a report of a missing seven-year-old

child.     Officers eventually found the child, B.H., outside the

house next to a fence adjoining the neighbor’s yard.                      B.H. said

that she had been next door hanging out with a friend.

     Interviews with B.H. led the police to bring her to the

hospital    for     a    sexual    assault      forensic   exam.       Nurse    Sharon

Rogers performed the exam and found that B.H.’s hymen had been


     1 Palomino-Coronado further contends that the district court
erred by failing to take adequate steps to ensure that an
expert’s dual role did not prejudice or confuse the jury and
that his sentence was procedurally unreasonable, issues we do
not reach here.


                                           2
torn,    indicating         that      it   had    been     penetrated.         Rogers       also

identified       an     odor,         redness,       and       irritation,      which       were

consistent      with       an    infection.          Rogers       determined      that      B.H.

likely could not have gotten this type of infection from sexual

activity in the hours preceding the exam, suggesting that sexual

activity had also occurred previously.                          Rogers also interviewed

B.H.        During the interview, B.H. said that she had been at

“Anthony’s” house that night, that she had been there about ten

times       previously,         and    that      they    would     spend      time    in     his

basement.           Palomino-Coronado,            then     nineteen       years      old,    was

B.H.’s neighbor.

       Following the exam, Detective Cleo Savoy interviewed B.H.

The two first spoke privately for about an hour and a half and

were then joined by B.H.’s guardian; at that point, Savoy began

to record the interview.                   During the unrecorded portion of the

interview,      Savoy       testified        that    B.H.      said   that     she    went    to

Palomino-Coronado’s             house,       where      they     played      games    in     the

basement, Palomino-Coronado kissed her, and they had sex.                                   B.H.

also    said    that       Palomino-Coronado            took    pictures.         During     the

recorded portion of the interview, B.H. denied having any sexual

contact with Palomino-Coronado.

       On     May     3,     2012,         Prince       George’s      County      detectives

interviewed Palomino-Coronado and swore out a search warrant on

his residence.         The police also seized Palomino-Coronado’s cell

                                                 3
phone.       Later that day, a communications specialist with the

Prince George’s County Police Department extracted deleted and

undeleted images from Palomino-Coronado’s cell phone, including

one picture of a male lying on top of a paisley-patterned sheet

while vaginally penetrating a child.                         The extraction revealed

that this particular image had been deleted.

       The FBI later conducted its own forensic image extraction

from Palomino-Coronado’s cell phone, finding the same photo of a

man    penetrating      a     child.     Other       images       were   also    recovered,

including         thousands    of    Palomino-Coronado’s            face   and    at   least

three other images of B.H. in non-sexually explicit contexts.

       On May 15, 2012, Martha Finnegan, an FBI child forensic

interview specialist, interviewed B.H.                           During that interview,

B.H.       told    Finnegan       that   she       had     had    sexual   contact       with

Palomino-Coronado           and     identified       the    two     individuals     in   the

picture as “B” for B.H. and “A” for Anthony.

       The government sought to indict Palomino-Coronado on one

count:      knowingly         employing,       using,            persuading,      inducing,

enticing, and coercing a minor to engage in sexually explicit

conduct for the purpose of producing a visual depiction of such

conduct in violation of 18 U.S.C. § 2251(a). 2




       2
       At oral argument, the government acknowledged that an
indictment was pending in state court for various state-law
(Continued)
                                               4
     At trial, B.H. testified that Palomino-Coronado had touched

her private parts on more than one occasion.                      She also testified

that she was scared during her initial interview with the police

and had lied to them.         She then identified herself and Palomino-

Coronado    in     the   pictures   from       his   cell    phone,     including   the

sexually explicit photo.             B.H. also testified that during her

interview with Savoy, Savoy told her that she could not go home

if she kept denying that she and Palomino-Coronado had had sex.

B.H. said that Savoy had taken her teddy bear away from her

during   the     interview    because      she       was    not   answering    Savoy’s

questions.

     Finnegan also testified, both as a lay witness and as an

expert     in    child    forensic    interviewing.               As    part   of   her

testimony, she evaluated the interview that Savoy conducted and

explained that it was coercive and did not follow established

protocols.       Finnegan also testified about her own interview of

B.H., during which B.H. disclosed to her that B.H. and Palomino-

Coronado     had    engaged    in    sexual      conduct      and      identified   the

photograph.

     At the close of the government’s case, Palomino-Coronado

made a motion for judgment of acquittal based on insufficient



crimes, which might well be supported by the unfortunate and
horrific events that are at issue here.


                                           5
evidence pursuant to Federal Rule of Criminal Procedure 29.                              The

district court denied the motion.

       The jury subsequently found Palomino-Coronado guilty.                             The

court sentenced him to thirty years, which was both the maximum

permitted under the statute and the lowest amount of time within

the guidelines range.            Palomino-Coronado timely appealed.



                                           II.

       We review a challenge to the sufficiency of the evidence de

novo.     United States v. Engle, 676 F.3d 405, 419 (4th Cir.

2012).      We     must    affirm    the    verdict    if        it    is   supported     by

substantial evidence, viewed in the light most favorable to the

government.        United States v. Gillion, 704 F.3d 284, 294 (4th

Cir. 2012) (citing United States v. Reid, 523 F.3d 310, 317 (4th

Cir.     2008)).          Substantial       evidence        is    “evidence       that     a

reasonable       finder     of     fact     could    accept           as    adequate     and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.”          United States v. Alerre, 430 F.3d 681, 693

(4th Cir. 2005) (citation omitted).

       A defendant bringing a sufficiency challenge “must overcome

a heavy burden.”           United States v. Hotye, 51 F.3d 1239, 1245

(4th Cir. 1995).           The Court “may not overturn a substantially

supported        verdict     merely        because     it        finds      the   verdict

unpalatable or determines that another, reasonable verdict would

                                            6
be preferable,” United States v. Burgos, 94 F.3d 849, 862 (4th

Cir. 1996); instead reversal for insufficiency must “be confined

to cases where the prosecution’s failure is clear,” Burks v.

United States, 437 U.S. 1, 17 (1978).



                               III.

     Palomino-Coronado   contends       that   the   government   failed   to

prove one of the elements of § 2251(a)—namely, that he acted for

the purpose of producing a visual depiction. 3

     Section 2251(a) provides, in relevant part,

     “Any person who employs, uses, persuades, induces,
     entices, or coerces any minor to engage in . . . any
     sexually explicit conduct for the purpose of producing
     any visual depiction of such conduct . . . shall be
     punished as provided under subsection (e) . . . if
     that visual depiction was produced or transmitted
     using materials that have been mailed, shipped, or
     transported in or affecting interstate or foreign
     commerce by any means.”

18 U.S.C. § 2251(a).




     3 A week prior to oral argument, the government filed a
letter of supplemental authority asserting that Palomino-
Coronado waived his purpose argument by not raising it during
his Rule 29 motion.    We are entitled to excuse a defendant’s
waiver in the district court if the government fails to properly
and timely raise a waiver contention in its brief.    See United
States v. Ashford, 718 F.3d 377, 381 (4th Cir. 2013); United
States v. Carthorne, 726 F.3d 503, 509 n.5 (4th Cir. 2013). In
“the interests of fairness and the integrity” of our procedural
rules, we hold that the government waived its waiver argument.
See Ashford, 718 F.3d at 381.


                                    7
     As the text indicates, § 2251(a) contains a specific intent

element:     the government was required to prove that production

of a visual depiction was a purpose of engaging in the sexually

explicit conduct.         Id.; see United States v. Lebowitz, 676 F.3d

1000, 1013 (11th Cir. 2012).                “It is simply not enough to say

‘the photo speaks for itself and for the defendant and that is

the end of the matter.’”                 United States v. Crandon, 173 F.3d

122, 129 (3d Cir. 1999) (discussing the purpose requirement in

the related cross-reference under U.S.S.G. § 2G2(c)(1)).                                    That

is, a defendant must engage in the sexual activity with the

specific     intent      to   produce      a       visual   depiction;          it     is    not

sufficient simply to prove that the defendant purposefully took

a picture.       Nonetheless, courts do not require that a defendant

be single-minded in his purpose to support a conviction under

§ 2251(a).       E.g., Lebowitz, 676 F.3d at 1013; United States v.

Morales-de Jesus, 372 F.3d 6, 21–22 (1st Cir. 2004); see also

United    States    v.     Cox,    744     F.3d      305,   309          (4th   Cir.    2014)

(considering “purpose” in the context of the application of a

cross-reference under § 2G2.1(c)(1) of the sentencing guidelines

governing production of some child pornography offenses).

     We    have    not     previously       considered          a    challenge       to      the

sufficiency of the evidence in a conviction under § 2251(a).

Courts    have    sometimes       been    able      to   rely       on    direct     evidence

indicating a defendant’s purpose.                    E.g., Lebowitz, 676 F.3d at

                                               8
1013.       In Lebowitz, for example, the minor testified that he and

the defendant “discussed videotaping a sexual encounter prior to

the recording.”          Id.; see also United States v. Lee, 603 F.3d

904,    918     (11th     Cir.   2010)        (holding         that    the     defendant’s

description of “how many photographs he wanted of each girl” and

“how    he     wanted     the    girls        to     pose”      contributed          to    the

reasonableness of the jury’s finding that he intended to use the

minors in the production of child pornography).

       More     often,    however,       courts          are    presented      only       with

circumstantial       evidence    to    show        that    a    defendant      acted      with

purpose.       For example, defendants’ actions, instructions, and

descriptions of the visual depictions produced or to be produced

might indicate purpose.          E.g., Morales-de Jesus, 372 F.3d at 21–

22.     In Morales-de Jesus, finding the evidence sufficient, the

First Circuit pointed to the fact that the defendant “actively

concealed from the minor the fact that he was videotaping her.”

Id.    at    21.    The    defendant     also       gave       “specific      instructions

regarding certain positions he wanted her to assume relative to

the    camera,     instructed    her     on       what    to   say    while    the    camera

recorded their activities, and used a remote control to zoom the

camera in and out while they were having sex.”                             Id. at 21–22;

see also United States v. Sirois, 87 F.3d 34, 42 (2d Cir. 1996)

(holding that the jury could have inferred intent in part based

on the defendant’s “direct[ing] the participants to move their

                                              9
sexual activity to different parts of the lean-to, so that he

could more easily videotape them”).

      Courts   have    also    found   the   number   of   sexually   explicit

recordings or depictions indicative of purpose.                   E.g., United

States v. Ortiz-Graulau, 526 F.3d 16, 19 (1st Cir. 2008).                   In

Ortiz-Gralau,    the    defendant      had    taken   over   fifty    pictures

depicting sexual contact between him and a minor or of the minor

in a sexually explicit position.             Id. at 18.    The First Circuit

found that the “number of photographs, many of sexually explicit

poses, permit[ted] a strong inference that some of the conduct

occurred in order to make the photographs.”                Id. at 19 (citing

Morales-de Jesus, 372 F.3d at 22); see also Morales-de Jesus,

372 F.3d at 22 (“[A] reasonable jury also could infer that since

Morales taped sexual encounters with the minor more than once,

he induced the girl to engage in sex acts for the purpose of

creating videotapes of their encounters.”).

      Finally,   courts       have   considered   evidence   of    “purposeful

conduct” surrounding the photographic or video equipment used.

E.g., Lebowitz, 676 F.3d at 1013; see also Morales-de Jesus, 372

F.3d at 22.      In Lebowitz, the Eleventh Circuit cited evidence

that the defendant brought the camera and a tripod with him,

carried them through the minor’s bedroom window, and set them

up.   676 F.3d at 1013.          Moreover, evidence showed that “[t]he

sexual encounter occurred in [the minor’s] bedroom only because

                                        10
there was not room for the recording equipment in Lebowitz’s

car.”         Id.      Meanwhile,          in     Morales-de      Jesus,     “[a]fter     the

defendant had taken the minor to a motel room to have sex for

the    fourth       time,       he   returned      to   his   car    and    retrieved     the

recording equipment that he kept there.”                          372 F.3d at 22.          The

First Circuit also found that the fact that the defendant “kept

sexual aids in the same bag with the camera” might also have

been enough for the jury to find that the defendant had planned

to videotape the encounters.                    Id.; see also Sirois, 87 F.3d at

37, 42 (finding relevant that both actors had brought recording

equipment:          one     a    camera     and    a    videorecorder       and    the   other

another camera).

       Here, the evidence produced at trial does not support the

conclusion      that        Palomino-Coronado           engaged     in   sexual     activity

with B.H. for the purpose of producing a picture.                                  No direct

evidence or statements indicating intent were offered.                                   There

was no testimony that Palomino-Coronado gave any instruction or

direction to B.H. as part of their sexual encounter that would

indicate purpose.               See, e.g., Morales-de Jesus, 372 F.3d at 21–

22; Sirois, 87 F.3d at 42.

       All that the record shows is that Palomino-Coronado had

engaged in sexual activity with B.H. on more than one occasion;

that he had taken several non-sexually explicit pictures of her

with    his    cell    phone         in   his   basement;     and    that    one    sexually

                                                  11
explicit picture was taken, in which B.H. identified herself and

Palomino-Coronado as the two people depicted.                          Without more,

these facts do not support the conclusion that Palomino-Coronado

engaged in sexual activity with B.H. in order to take a picture.

To   hold      otherwise         would     eliminate       the    specific     intent

requirement, turning § 2251(a) into a strict liability offense.

        We find it significant here that only one photograph was

taken and subsequently deleted. 4                   The government argues that

there is no requirement that a defendant take a certain quantity

of   images     or   engage      in   a   certain    amount      of   preparation   to

determine whether he has acted for the purpose of producing a

visual depiction.         We agree as a general matter.               Although, when

pressed at oral argument, the government could not provide any

authority upholding a conviction challenging the specific intent

element where only one photograph was taken.

      In this instance, where Palomino-Coronado engaged in sexual

activity with B.H. over many months, the fact that only one

image was produced militates against finding that his intent in

doing     so   was   to   take    a   picture.       The    single     photo   is   not

evidence that Palomino-Coronado engaged in sexual activity with

B.H. to take a picture, only that he engaged in sexual activity


      4We note that the record did not indicate at what point the
photograph was deleted, whether it was immediately after it was
taken or sometime later.


                                           12
with B.H. and took a picture.                   Cf. Crandon, 173 F.3d at 130

(acknowledging      that     “[s]et    in       context,”     the     fact    that   the

defendant had taken close to fifty pictures of the minor, only

two   of    which    were    sexual     in      nature,      “could      support     [the

defendant’s] contention that his purpose in taking the photos

was the memorialization of their time together or his love for

her—a purpose other than producing sexually explicit material”).

To be sure, a situation might well present itself where only one

photograph    was    taken    but     where     there   was    other      evidence    of

purpose, and we do not hold that a sufficiency challenge would

necessarily fail in that instance.               But that is not this case.

      The government contends that Palomino-Coronado’s frequent

use of the camera on his cell phone showed that he “regularly

and intentionally used his phone to take pictures of all aspects

of his life.”        The government also asserts that the fact that

the photo at issue focused on Palomino-Coronado’s genital area

as he engaged in sexual activity with B.H. demonstrates that the

photo was not unintentionally or inadvertently captured.

      But    the    government      does      little    to    explain        how   these

conclusory statements indicate that Palomino-Coronado initiated

the sexual activity with B.H. for the purpose of producing the

picture.      Instead,       the    government       appears        to   conflate    the

voluntary act of taking the picture with the specific intent

required under the statute.

                                           13
       The fact that Palomino-Coronado brought his cell phone with

him   to     the   basement     does       not    support       a    finding    of   purpose.

Palomino-Coronado’s use of his cell phone to take pictures is a

far cry from the tripod and other recording equipment used to

support purpose in other cases.                        See, e.g., Lebowitz, 676 F.3d

at    1013;    Morales-de      Jesus,       372        F.3d    at    22.    Whereas     those

devices       demonstrate      some    sort           of    forethought,       planning,    or

intent, the mere presence of a cell phone is not evidence of

purpose.           Cell    phones     are        now       ubiquitous,     especially      for

teenagers, and almost always within reach.                            We do not conclude

that use of a cell phone will never be evidence of purpose under

§ 2251(a); instead, we simply hold that Palomino-Coronado’s use

of his cell phone in this instance does not meet the specific

intent requirement under the statute.



                                             IV.

       For    these       reasons,    we    hold       that    the    government     adduced

insufficient evidence to show that Palomino-Coronado acted for

the purpose of producing a visual depiction.                           The district court

thus erred in denying Palomino-Coronado’s motion for judgment of

acquittal.         Therefore, we reverse the district court’s ruling

and vacate Palomino-Coronado’s conviction.

                                                                     REVERSED AND VACATED



                                                 14
