                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-14-2005

USA v. Destio
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3110




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 04-3110
                                      ____________

                           UNITED STATES OF AMERICA

                                              v.

                                     JADE DESTIO,

                                            Appellant
                                      ____________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                 (D.C. No. 03-cr-00052)
                      District Judge: Honorable James M. Munley
                                     ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 27, 2005

           Before: SLOVITER, FISHER and GREENBERG, Circuit Judges.

                               (Filed November 14, 2005)
                                     ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Jade Destio appeals the District Court’s judgment of conviction and sentence,

alleging that the District Court erroneously denied his pretrial motions. Destio was

convicted under 18 U.S.C. § 2252(a)(4)(B), which prohibits the possession of materials
depicting the sexual exploitation of a minor. Destio argues that (1) the Child

Pornography Prevention Act of 1996 (“CPPA”) is unconstitutional; (2) the indictment

against him was not based upon probable cause; and (3) the case must be remanded for a

new sentencing hearing because the District Court did not know it had the authority to

make Destio’s concurrent sentence retroactive. For the reasons that follow, we will

affirm the judgment of the District Court.

                                             I.

       As we write only for the parties, we set forth only those facts necessary to our

analysis. On September 13, 2002, officers of the Pennsylvania State Police obtained

Destio’s computer during the execution of a search warrant at his home. The computer

was found to contain over 300 images depicting minors engaging in sexually explicit

conduct. The Federal Bureau of Investigation (“FBI”) then compared the images with all

the images of known children depicted in other child pornography cases.1 None of the

children depicted were known children.

       On September 24, 2002, Destio was arrested on a state charge of statutory sexual

assault. After entering a plea of guilty, Destio was sentenced to three to six years

imprisonment on this charge by the Court of Common Pleas of Monroe County,

Pennsylvania.




       1
        This is routinely done in child pornography prosecutions to determine if the
identity and location of any of the depicted children are known to federal authorities.

                                             2
       On February 25, 2003, a federal grand jury returned an indictment against Destio

on one count of possessing visual depictions of minors engaged in sexually explicit

conduct, in violation of 18 U.S.C. § 2252(a)(4)(B).

       On June 9, 2003, Destio was arraigned on the federal indictment and entered a plea

of not guilty. Destio subsequently filed pretrial motions to dismiss the indictment. Destio

argued that (1) the CPPA was unconstitutional on its face; and (2) the indictment was not

based on probable cause with respect to the elements of the charged offense. On

December 16, 2003, the District Court denied Destio’s pretrial motions.

       On January 13, 2004, a federal grand jury returned a two-count superseding

indictment, charging Destio with violating 18 U.S.C. § 2252(a)(4)(B) and with production

of child pornography in violation of 18 U.S.C. § 2251(a).2 In order to preserve the issue

for appellate review, Destio filed pretrial motions with regard to count one of the

superseding indictment. These motions were identical in substance to the motions filed as

to the original indictment, and were also denied by the District Court.

       On March 29, 2004, Destio pled guilty to count one of the superseding indictment

based on a plea agreement that permitted him to appeal the denial of his pretrial motions.

       On July 13, 2004, Destio was sentenced to thirty-six months imprisonment. This

sentence was to run concurrent to his unexpired state sentence from the date of the federal

sentence. This timely appeal followed.


       2
           Count two was based on a videotape he made of his fifteen-year-old stepdaughter.

                                              3
                                             II.

                                             A.

       Destio’s first argument is that his constitutional challenge to the indictment should

have been sustained. Destio argues that Ashcroft v. Free Speech Coalition, 535 U.S. 234

(2002), invalidates the entire CPPA, including the provision under which Destio was

indicted and convicted. We exercise plenary review over questions concerning the

constitutionality of statutes. United States v. Rodia, 194 F.3d 465, 469 (3d Cir. 1999).

       Ashcroft v. Free Speech Coalition struck down, as overbroad and unconstitutional,

two subsections of the CPPA that were part of the statutory definition of “child

pornography.” Free Speech Coalition, 535 U.S. at 256, 258. Those provisions were 18

U.S.C. § 2256(8)(B), which prohibits any visual depiction, including a computer-

generated image, that “is, or appears to be, of a minor engaging in sexually explicit

conduct,” and 18 U.S.C. § 2256(8)(D), which prohibits any sexually explicit image that

was “advertised, promoted, presented, described, or distributed in such a manner that

conveys the impression” of depicting “a minor engaging in sexually explicit conduct.” 3

Id. Free Speech Coalition held that the “virtual pornography” prohibited by these

provisions is speech that is protected under the First Amendment. Id.




       3
       In 2003, Congress repealed 18 U.S.C. § 2256(8)(D) and amended 18 U.S.C.
§ 2256(8)(B). Prosecutorial Remedies and Tools Against the Exploitation of Children
Today Act, Pub. L. No. 108-21, § 502(a)(1), (a)(3), 117 Stat. 650, 678 (2003).

                                             4
       Destio argues that these unconstitutional definition provisions taint the entire

CPPA, and that Free Speech Coalition thus effectively held the entire CPPA

unconstitutional. This argument finds no support in the language of Free Speech

Coalition. By its very terms, § 2252(a)(4)(B) applies only if the prohibited materials in

the defendant’s possession involve the sexual exploitation “of a minor.” 4 It does not

prohibit “virtual pornography” of the type at issue in Free Speech Coalition. Moreover,

§ 2252(a)(4)(B) does not even use the term “child pornography.” Free Speech Coalition,

therefore, has no impact on prosecutions under § 2252(a)(4)(B).

       Several of our sister courts of appeals have rejected arguments that the holding of

Free Speech Coalition has an effect on the entire CPPA. See, e.g., United States v.

Kimler, 335 F.3d 1132, 1141 (10th Cir. 2003) (citing United States v. Pearl, 324 F.3d

1210, 1213 (10th Cir. 2003) (noting that 18 U.S.C. § 2256 contained both constitutional

and unconstitutional definitions of “child pornography”)), cert. denied, 539 U.S. 934

(2003); United States v. Deaton, 328 F.3d 454 (8th Cir. 2003). The Eighth Circuit in

Deaton noted that it was an element of § 2252 that the production of the prohibited




       4
        “[Any person who] knowingly possesses 1 or more books, magazines periodicals,
films, video tapes, or other matter which contain any visual depiction that has been
mailed, or has been shipped or transported in interstate or foreign commerce, or which
was produced using materials which have been mailed or so shipped or transported, by
any means including by computer, if (i) the producing of such visual depiction involves
the use of minor engaging in sexually explicit conduct; and (ii) such visual depiction is of
such conduct [shall be punished as provided in subsection (b) of this section].” 18 U.S.C.
§ 2252(a)(4)(B).

                                              5
material involve the sexual exploitation of a minor, and that Free Speech Coalition,

therefore, did not apply. Deaton, 328 F.3d at 455. In Kimler, the Tenth Circuit noted that

it was clear that the Supreme Court’s holding in Free Speech Coalition is limited to the

constitutionality of subsections 2256(8)(B) and 2256(8)(D). Kimler, 335 F.3d at 1141.

We agree with our sister courts’ assessment of the scope of Free Speech Coalition: its

holding simply has no bearing upon § 2252(a)(4)(B).

       As the statute at issue does not encompass virtual pornographic images, it is not

impacted by the Supreme Court’s holding in Free Speech Coalition. Destio’s

constitutional challenge is without merit.

                                              B.

       Destio’s second argument is that the superseding indictment was not based on

probable cause with respect to two elements of the offense charged, and that his motion to

dismiss should have been granted as a result. Destio contends that the indictment was

flawed because the government failed to show probable cause that the images in question

involved the use of actual children and that the government also failed to show that

Destio knew the images involved the use of actual minors.

       As an initial matter, we do not believe that Destio is entitled to challenge the

sufficiency of the evidence presented to the grand jury. It is well settled that “an

indictment is sufficient if it, first, contains the elements of the offense charged and fairly

informs the defendant of the charge against which he must defend, and, second, enables



                                               6
him to plead an acquittal or conviction in bar of future prosecutions for the same

offense.” Hamling v. United States, 418 U.S. 87, 117 (1974). “It is generally sufficient

that an indictment set forth the offense in the words of the statute itself, as long as ‘those

words of themselves fully, directly, and expressly, without any uncertainty or ambiguity,

set forth all the elements necessary to constitute the offence intended to be punished.’”

Id. (citing United States v. Carll, 105 U.S. 611, 612 (1882)).

       An indictment returned by a legally constituted and unbiased grand jury is

sufficient, if valid on its face, to proceed to trial on the merits. Costello v. United States,

350 U.S. 359, 363 (1956). A defendant is not entitled to challenge an indictment on the

ground that it is not supported by adequate or competent evidence. United States v.

Calandra, 414 U.S. 338, 344-45 (1974); United States v. Labate, 270 F.2d 122, 123-24

(3d Cir. 1959) (citing Costello, 350 U.S. at 363-64); see also United States v. Maceo, 873

F.2d 1, 3 (1st Cir. 1989) (stating that a court should not inquire into the sufficiency of the

evidence before the indicting grand jury).

       Destio, however, attempts to distinguish himself from this rule by arguing that the

grand jury must be biased due to the failure of the prosecutor to apprise the grand jury of

the government’s inability to identify actual children in the images. There is no merit to

this position.

       In a prosecution under § 2252(a)(4)(B), the government need not prove the

identities of the children involved. The government need only prove that the images



                                               7
involve actual children, and this may be done by a view of the images themselves, or by

non-expert testimony. Kimler, 335 F.3d at 1142 (stating that expert testimony not

required in order to sustain a conviction under 18 U.S.C. § 2252), Deaton, 328 F.3d at

455 (upholding a jury’s conclusion that real children were depicted where images

themselves were only evidence presented on the subject); United States v. Hall, 312 F.3d

1250, 1260 (11th Cir. 2002) (stating that pictures themselves sufficient to support jury

finding that actual children involved), cert. denied, 538 U.S. 954 (2003).

       In this case, the images were viewed by the grand jury. The grand jury also

considered testimony from an FBI agent, who testified that the images on Destio’s

computer depicted actual minors. Thus, the evidence before the grand jury in this case

can easily support a finding of probable cause that the images involved actual children; in

fact, in Kimler, Deaton, and Hall, similar evidence was deemed sufficient even under the

more exacting “proof beyond a reasonable doubt” standard. Destio’s second challenge

has no merit.

                                             C.

       Destio’s final argument is that his case must be remanded for resentencing. At the

end of the sentencing hearing, Destio’s counsel asked the District Court if the concurrent

sentence ran from the date of federal sentencing. The District Court replied that it did.

After an off-the-record discussion, during which Destio’s counsel inquired whether the

sentence could be made retroactive to various dates in the past, including the date of



                                             8
Destio’s initial arrest on state charges, the District Court went back on the record and

stated as follows: “I don’t know whether I have the authority to do that or not, but in any

event, if I do have the authority, I do not feel it is warranted in this case.”

       Destio argues that the District Court’s refusal to grant his request must be

considered an abuse of discretion because the District Court did not understand that it had

the discretion under Section 5G1.3 of the United States Sentencing Guidelines to impose

the sentence retroactive to the requested dates. This argument is without merit. The

District Court expressly stated that, if it had the authority to grant Destio’s request, it

would not exercise that discretion given the facts of the case. Because the District Court

expressly stated that it would choose not to exercise its discretion if it did possess the

authority to grant Destio’s request, we cannot find an automatic abuse of discretion based

on the District Court’s failure to recognize its authority.

       Moreover, the government correctly asserts that we do not have jurisdiction to

review the District Court’s denial of Destio’s request. In support of this argument, the

government cites application note 3(E) to Section 5G1.3 of the Guidelines. U.S.

Sentencing Guidelines Manual § 5G1.3 cmt. n.3(E) (2003).5 This provision provides that


       5
         We note that, pursuant to section 1B1.11(b)(1), Destio was sentenced under the
2001 edition of the Guidelines Manual, and this application note was not added until the
2003 edition. U.S. Sentencing Guidelines Manual app. c. However, when applying an
earlier edition of the Guidelines Manual, a court shall consider subsequent amendments,
to the extent that such amendments are clarifying rather than substantive changes. U.S.
Sentencing Guidelines Manual § 1B1.11(b)(2). As the addition of application note 3(E)
was a clarifying amendment, we will consider it in our analysis.

                                                9
“subsection (c) does not authorize an adjustment of the sentence for the instant offense

for a period of imprisonment already served on the undischarged term of imprisonment.”

The provision further provides that in certain cases it may be appropriate for the court to

grant a downward departure based on such a sentence. Id. Thus, the government

contends, Destio’s request was tantamount to a request for a downward departure.6

       The government argues that we lack jurisdiction to review the District Court’s

refusal to grant Destio’s request for a downward departure. Although we generally do not

have jurisdiction to review a district court’s denial of a requested downward departure,

United States v. Minutoli, 374 F.3d 236, 239 (3d Cir. 2004), we do have jurisdiction if the

refusal to grant the downward departure was based on the court’s erroneous belief that it




       6
        Prior to the enactment of application note 3(E), we stated that “credit for time
served on a pre-existing sentence is allowed under § 5G1.3(c).” Ruggiano v. Reich, 307
F.3d 121, 130 (3d Cir. 2002). We further noted that imposing a concurrent sentence
retroactively to coincide with time served on a pre-existing sentence is properly termed an
adjustment, and not a credit or downward departure. Id. at 133.
       Although application note 3(E) clearly allows a district court to give credit for time
served on a pre-existing sentence in extraordinary circumstances, it also clearly states that
such a credit is properly deemed a downward departure and not an adjustment. U.S.
Sentencing Guidelines Manual § 5G1.3 cmt. n 3(E) (2003). The policy statements and
commentary contained in the Guidelines are binding on the federal courts. Ruggiano, 307
F.3d at 128 n.4 (citing Rios v. Wiley, 201 F.3d 257, 260 n.3 (3d Cir. 2000)). Thus, to the
extent it is contradicted by application note 3(E), we believe that Ruggiano is abrogated
by the new commentary contained in the Guidelines. We will, therefore, consider
Destio’s request as one for a downward departure.
       We note, however, that we would reach the same result if we considered Destio’s
request as one for an adjustment.

                                             10
lacked discretion, United States v. Dominguez, 296 F.3d 192, 194 (3d Cir. 2002). We

must determine which rule applies to the present case.

       In Dominguez, the district court refused to grant a requested downward departure

solely on the ground that it lacked discretion to do so. In fact, the court stated that, if it

had discretion to grant a downward departure, it would depart downward by four levels.

Id. In contrast, the District Court below clearly stated that, if it did have the authority to

grant Destio’s request, it would not exercise that discretion because it was not appropriate

in this case. Therefore, the District Court’s refusal to grant the downward departure was

not based on the court’s erroneous belief that it lacked discretion, and we thus have no

jurisdiction to review the District Court’s refusal to grant the request. Cf. Dominguez,

296 F.3d at 194.

       Moreover, if we did reach the issue, we could not find an abuse of discretion in the

District Court’s refusal. The nature of the underlying state offense is heinous and, as a

result, the District Court’s decision was entirely appropriate.7 This is true regardless of

whether Destio’s request is properly deemed a request for a downward departure or a

request for an adjustment.




       7
       Destio provided alcohol to his fifteen-year-old stepdaughter, had her undress,
videotaped her, and then sexually assaulted her.

                                               11
                                          III.

      Destio’s arguments have no merit. Accordingly, we will affirm the District

Court’s judgment of conviction and sentence.




                                          12
