11-1122-cr
United States v. Wilke

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1 .
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 31st day of May, two thousand twelve,

Present:    AMALYA L. KEARSE,
            ROSEMARY S. POOLER,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                               Appellee,

                         -v-                                                11-1122-cr

DALTON E. WILKE,

                               Defendant-Appellant.



Appearing for Appellant:       Arza Feldman, Feldman and Feldman, Uniondale, N.Y.


Appearing for Appellee:        Marisa J. Miller, Craig R. Gestring, Assistant United States
                               Attorneys, of counsel, for William J. Hochul, Jr. United States
                               Attorney for the Western District of New York.

     Appeal from a judgment of the United States District Court for the Western District of
New York (Siragusa, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

         Defendant-appellant Dalton Wilke was convicted of one count of utilizing a means or
facility of interstate commerce to entice an individual under 18 to engage in criminal sexual
activity, in violation of 18 U.S.C. § 2422(b); one count of receipt of child pornography, in
violation of 18 U.S.C. § 2252A(a)(2)(A); and one count of possession of child pornography, in
violation of 18 U.S.C. § 2252A(a)(5)(B). He was sentenced principally to 120 months’
imprisonment for the enticement count and 60 months’ imprisonment on each child pornography
count, to be served concurrently. Appellant asserts that the evidence was insufficient to support
his conviction on the enticement count and that his convictions for both receipt and possession
violated the Double Jeopardy Clause. We assume the parties’ familiarity with the underlying
facts, procedural history, and specification of issues for review.

         Wilke’s first argument is that there was insufficient evidence to show that he knew or
believed the victim to be under the age of 18, as required under 18 U.S.C. § 2422(b), which
makes it unlawful for a person “using . . . any facility or means of interstate . . . commerce . . .
[to] knowingly persuade[], induce[], entice[], or coerce[] any individual who has not attained the
age of 18 years, to engage in prostitution or any [criminal] sexual activity.” Defendants raising
sufficiency of the evidence challenges face a “heavy burden.” United States v. Friedman, 300
F.3d 111, 123 (2d Cir. 2002) (internal quotation marks omitted). “[T]he relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979).

        Wilke argues that because registration on silverdaddies.com requires a person to
represent he is above the age of 18, and because CRSSTTBTV--- the online persona of the
undercover detective--- used a profile photo which arguably appeared to be a person at least 18
years old, no rational trier of fact could have found that he intended to meet a 15 year-old. Such
a contention is completely belied by the record. The jury may have been entitled to accept
Wilke’s defense that based on those two facts he believed CRSSTTBTV was 18 or older, but it
was not required, in any sense, to do so. There was substantial, almost overwhelming evidence
in the record to support the jury’s finding that Wilke believed CRSSTTBTV to be under 18—
most critically the fact that CRSSTTBTV told Wilke at least twice that he was 15.

        Moreover, these explicit representations were not the only evidence of CRSSTTBTV’s
alleged age or of Wilke’s knowledge of that age. After being told for the second time that
CRSSTTBTV was 15, Wilke told him they would “have to be careful[]” because he did not
“want to go to jail.” He also told CRSSTTBTV to delete his chat history so that his parents
would not find it. Wilke and CRSSTTBTV also discussed at some length CRSSTTBTV’s
school, chores, his parents, and summer vacation. Finally, upon Wilke’s arrest, he admitted in a
signed statement that he came to the park to meet who he believed to be a 15 year-old boy. Any
contention that there was not sufficient evidence for any rational trier of fact to find that Wilke
knew his intended victim was under 18 is completely without merit.


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          Wilke’s next contention is that the Double Jeopardy Clause was violated by his
conviction for both receipt and possession of child pornography. He did not make an objection
at trial, so we review this contention for plain error. “[B]efore an appellate court can correct an
error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affect[s] substantial
rights. If all three conditions are met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.” Johnson v. United States, 520 US. 461, 466-67
(1997) (internal citation and quotation marks omitted).

        As an initial matter, our circuit has never decided the issue of whether conviction for the
same conduct under both receipt and possession of child pornography violates the Double
Jeopardy Clause. While there may be substantial support for such a proposition, even if we were
inclined to say that it would be plain error to convict a defendant for both receipt and possession
for the same conduct, it is not so plain that Wilke was in fact convicted for the same conduct.
The evidence at trial indicated that he had the pornographic video on both a computer and an
external hard drive. It might, then, be possible for Wilke to have been convicted for receipt and
possession based on different conduct, and thus possible for his conviction not to have
implicated Double Jeopardy. See United States v. Overton, 573 F.3d 679, 698 (9th Cir. 2009)
(“[T]he transfer and storage of previously-downloaded Internet images—to a memory card or
diskette, for example—describes conduct separate from the act of downloading pornography and
may thus provide sufficient independent basis for a possession conviction.”). We have, in
similar circumstances, refused to call convictions that might have pertained to different conduct
plain error where the defendant failed to object at trial. United States v. Irving, 554 F.3d 64, 78-
79 (2d Cir. 2009) (“If the jury's verdicts on counts 4 and 5 were based on different images, there
was no double jeopardy violation in the entry of judgment on both counts.”). In the absence of
binding circuit precedent and the clear possibility of a conviction based on Wilke’s having the
video on separate devices, we cannot say conviction on both counts was plain error.

       Though we find there is no plain error, we note that the government’s contention that
because Wilke’s sentences are concurrent, declining to exercise our discretion to correct any
Double Jeopardy error would not impugn the integrity or reputation of judicial proceedings, is
problematic. In Ball v. United States, 470 U.S. 856, 864 (1985), the Supreme Court held that
where there is a Double Jeopardy violation, the only remedy is for one of the convictions to be
vacated, and not for the sentences merely to be run concurrently. Id. It noted that

        [o]ne of the convictions, as well as its concurrent sentence, is unauthorized punishment
        for a separate offense.
                 The second conviction, whose concomitant sentence is served concurrently, does
        not evaporate simply because of the concurrence of the sentence. The separate
        conviction, apart from the concurrent sentence, has potential adverse collateral
        consequences that may not be ignored. For example, the presence of two convictions on
        the record may delay the defendant’s eligibility for parole or result in an increased
        sentence under a recidivist statute for a future offense. Moreover, the second conviction
        may be used to impeach the defendant’s credibility and certainly carries the societal
        stigma accompanying any criminal conviction.

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Id. at 864-65 (citations and emphasis omitted). We are not convinced that declining to correct an
error which, at a minimum, imposes an unlawful and unauthorized punishment, and which the
Supreme Court has told us might delay a person’s rightful eligibility for parole, an unwarranted
increase in later sentences and additional social stigma would not impugn the integrity or
reputation of judicial proceedings.

         We have examined the remainder of appellant’s arguments and find them to be without
merit.

         Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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