                                                               FILED: June 8, 2010

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                   No. 01-4308
                                    (CR-00-87)


United States of America,

                   Plaintiff - Appellee,

            v.

Michael Earl Crews,


                   Defendant - Appellant.




                                     O R D E R




    Upon consideration of the request filed to seal/modify the

opinion,    the    Court    grants    the   request.         The    opinion    filed

January    23,    2002,    is   modified    by   replacing    the    name     of   the

victim with the word “victim.”

                                             For the Court


                                             /s/ Patricia S. Connor

                                                         Clerk
                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 01-4308
MICHAEL EARL CREWS,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
                Malcolm J. Howard, District Judge.
                             (CR-00-87)

                      Argued: December 6, 2001

                      Decided: January 23, 2002

   Before WIDENER, NIEMEYER, and MOTZ, Circuit Judges.



Affirmed by unpublished per curiam opinion. Judge Motz wrote a dis-
senting opinion.


                             COUNSEL

ARGUED: Richard Brooks Glazier, BEAVER, HOLT, STERN-
LICHT, GLAZIER, CARLIN, BRITTON & COURIE, P.A., Fayette-
ville, North Carolina, for Appellant. Thomas B. Murphy, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee. ON
BRIEF: H. Gerald Beaver, BEAVER, HOLT, STERNLICHT, GLA-
ZIER, CARLIN, BRITTON & COURIE, P.A., Fayetteville, North
Carolina, for Appellant. John Stuart Bruce, United States Attorney,
2                       UNITED STATES v. CREWS
Anne M. Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Michael Crews was convicted of producing and conspiring to pro-
duce child pornography, in violation of 18 U.S.C. §§ 2251(a) &
2251(d). Challenging his convictions on appeal, Crews contends that
the government’s evidence was insufficient to prove (1) the existence
of an agreement as an essential element of conspiracy and (2) the fact
that the visual depictions at issue moved in interstate commerce. He
also contends that the district court admitted evidence in violation of
Federal Rule of Evidence 404(b). Finally, he challenges the delayed
search of his impounded automobile under the Fourth Amendment.
For the reasons that follow, we affirm.

                                    I

   The 14-year-old victim in this case, who obtained from friends the
telephone number of Michael Crews, called Crews and spoke to both
Crews and his roommate, Julius Schlee. During the conversation, he
told Crews and Schlee that he was 14 years old. At the time, Crews and
Schlee were about 25 years old and lived in an apartment in Fayetteville,
North Carolina. Pursuant to arrangements made during the call, Crews
and Schlee picked the victim up at his home the next morning around
8:00 a.m., after the victim’s parents had left for work, and they took
him back to their apartment. At the apartment, the three watched a male
pornographic video and then went to a bedroom where all three took
off their clothing and engaged in sexual acts. When they were
finished, Schlee showed the victim pictures on his computer of "guys"
"performing sex acts." After the three arranged to meet the next day at
7:30 a.m., Crews and Schlee took the victim home.
                        UNITED STATES v. CREWS                         3
   The following morning, Crews and Schlee again picked the victim up
and took him to their apartment. The three played a game of nude
Twister and then went into the bedroom where the victim performed anal
sex on Crews while Schlee stood by. When they were finished, Crews
left the room, and the victim performed anal sex on Schlee. During this
encounter, Crews came back into the room, picked up the video camera
that was beside the bed and started filming Schlee and the victim.
Schlee and the victim asked Crews to stop but Crews said to "hold on,"
insisting that he wanted to take the video. He continued to film Schlee
and the victim for about ten minutes.

   Later that same morning, Crews took approximately 15 to 20 nude
pictures of Schlee and the victim, using a digital camera that was at-
tached to his computer. A few days later, Crews and Schlee sent images
of these pictures via an America Online e-mail account to the victim,
which he viewed at his home. After these encounters, the victim never
saw Crews again.

    A few weeks after the video of Schlee and the victim was taken,
Schlee saw Crews watching it and repeatedly asked Crews to destroy the
tape. Crews refused, telling Schlee that he would do what he wanted with
it.

   A year later, Crews moved from North Carolina to Virginia,
presumably taking all of his possessions with him. Schlee later testified
that to the best of his knowledge, Crews still had possession of the
videotape of Schlee and the victim. Indeed, Crews repeatedly threatened
Schlee in the manner, "I wonder what your mom would think if she saw
these videos."

   After the victim’s father learned about his minor son’s encounters,
Crews was indicted in the Eastern District of North Carolina for pro-
ducing child pornography and aiding and abetting in the production of
child pornography, in violation of 18 U.S.C. § 2251(a), and conspiracy
to produce child pornography in violation of 18 U.S.C. § 2251(d). Crews
was convicted, and the district court sentenced him to 100 months’ im-
prisonment. From the judgment of conviction, Crews filed this appeal.
4                        UNITED STATES v. CREWS
                                      II

  Crews contends first that the evidence was insufficient to convict
him of conspiring to produce child pornography because the govern-
ment failed to meet its burden of showing an agreement between
Crews and Schlee to create the visual depictions at issue in this case.

   In order to establish that Crews and Schlee conspired to produce
visual depictions of minors engaged in sexual acts, the government
must prove, among other things, that they agreed to produce such
visual depictions. United States v. Meredith, 824 F.2d 1418, 1428 (4th
Cir. 1987). The government does not, however, have to show an
explicit agreement because "agreement may be inferred from the facts
and circumstances of the case," United States v. Baker, 985 F.2d
1245, 1255 (4th Cir. 1993), and "a tacit or mutual understanding
among or between the parties will suffice," United States v. Depew,
932 F.2d 324, 326 (4th Cir. 1991). To meet its burden of proof on a
particular issue, the government must present substantial evidence
sufficient to support the jury’s verdict. See Glasser v. United States,
315 U.S. 60, 80 (1942) (holding that a jury verdict must be sustained
"if there is substantial evidence, taking the view most favorable to the
Government, to support it").

   In this case, there was ample evidence from which the jury could have
inferred that Crews and Schlee agreed to produce the visual depictions
at issue. The initial encounter between Crews, Schlee, and the victim was
orchestrated to the point that within an hour of meeting, the three were
in the bedroom performing sex acts. In addition, Schlee was aware that
Crews had, in the past, made a sexually explicit video of himself with a
young boy; the video camera used to take the video in this case was sit-
ting right next to the bed; and after Schlee and the victim’s initial protest,
Crews videotaped Schlee and the victim engaging in sex acts, without
further protest, for ten minutes. Taking this evidence in the light most
favorable to the government, it was sufficiently substantial to support the
jury’s finding of an implied agreement to produce pornography.

                                     III

  Crews also contends that there was insufficient evidence from
which the jury could have found that the visual depictions at issue in
                        UNITED STATES v. CREWS                         5
this case were "actually . . . transported in interstate . . . commerce."
18 U.S.C. § 2251(a). We conclude there was ample evidence from
which the jury could have concluded that the videotape in question
was taken by Crews from North Carolina to Virginia when he moved
to Virginia, and, therefore, this element was sufficiently proven by the
government. Schlee testified that Crews moved to Virginia and as far
as he knew took all of his belongings with him. Moreover, Crews
implied that he had the videotape in his possession because (1)
despite Schlee’s repeated requests, Crews refused to destroy the vid-
eotape and (2) after moving to Virginia, Crews threatened Schlee with
playing the tape for Schlee’s mother. From this evidence, the jury
could have concluded that Crews transported the videotape from
North Carolina to Virginia.

                                   IV

   Crews next contends that the district court erred in admitting testi-
mony about an earlier videotape that Crews took involving a sexual
encounter between himself and another boy. He asserts that the district
court admitted this evidence in violation of Federal Rule of Evidence
404(b) because the evidence was irrelevant to any of the charged crimes
and any probative value the videotape may have had was substantially
outweighed by its prejudicial effect. We find this argument to be without
merit. This videotape of a prior encounter with someone other than the
victim supported an inference that Crews and Schlee planned to create
a videotape of the encounter between the two of them and the victim
because Schlee’s testimony about both the contents of this tape and his
knowledge that Crews had made it could be taken as circumstantial
evidence demonstrating a tacit agreement between the two men to create
a similar videotape with the victim.

   In addition, the district court admitted evidence about the existence
of this videotape but did not permit the jury to view it, thereby
avoiding much of the prejudice that might have been caused had it been
shown to the jury. We therefore conclude the district court did not abuse
its discretion.

                                   V

  Finally, Crews challenges the admission of an address book into
evidence, contending that the address book was obtained through a
6                       UNITED STATES v. CREWS
search of his automobile, in violation of the Fourth Amendment, and
therefore should have been suppressed.

   Crews’ automobile was searched and impounded in October 2000
pursuant to his arrest on state law charges. As part of its investigation
of Crews for federal crimes, the FBI performed an additional search
of the vehicle in late July 2001 and discovered the address book at
issue. At the time of the search, the automobile was still being held
in the impound lot, and the FBI agent believed that the vehicle had
been abandoned and now belonged to the impound lot. Accordingly,
he obtained permission from the lot’s owner to search it.

   According to Virginia law, under which the automobile was
impounded, an owner who fails to reclaim an impounded abandoned
car within 15 days consents to the sale of the vehicle at public auction
by the entity holding the car. See Va. Code Ann. § 46.2-1202. The
FBI agent also testified that in Virginia, a vehicle seized by the police
department is turned over to a contractor station which maintains the
vehicle for 30 to 60 days, during which it must make all reasonable
attempts to return the vehicle. If the vehicle is not reclaimed by its
owner during that period, it becomes the property of the station to do
with what it wishes.

   The automobile at issue in this case was held by the impound lot
for almost ten months before the FBI performed its search of it. Thus,
by the time the search was conducted, the vehicle had become prop-
erty of the impound lot, and Crews no longer had "a legitimate expec-
tation of privacy in the vehicle." See Rakas v. Illinois, 439 U.S. 128,
143 (1978) (holding that when a person no longer has an expectation
of privacy in a vehicle, he lacks standing to challenge a search of the
vehicle). Accordingly, we conclude that Crews’ constitutional rights
under the Fourth Amendment were not violated because he lacked
standing to challenge the search of the vehicle. Therefore, the district
court’s admission of the address book into evidence did not constitute
an abuse of discretion.

    For the reasons given, the judgment of the district court is

                                                           AFFIRMED.
                        UNITED STATES v. CREWS                           7
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

   The Government presented no evidence that the visual depictions at
issue in this case — those involving the minor victim — were "actually
transported in interstate commerce," as is required in order to violate the
provision of the federal child pornography statute under which Crews
was indicted. See 18 U.S.C.A. § 2251(a) (West 2000). Accordingly, no
reasonable jury could have concluded that the depictions had in fact been
transported in interstate commerce in violation of that statute. Therefore,
with respect, I must dissent from the majority’s contrary holding.

   Three background facts — all undisputed — are necessary to under-
stand the deficiency in the evidence. First, Crews made all of the depic-
tions of the victim — the videotape and the digital pictures — in North
Carolina. JA 338-40, 344. Second, Crews also made in North Carolina
two or three other videotapes showing Julius Schlee masturbating, on
which the victim did not appear. JA 342. Third, after creating all of these
videotapes, Crews later moved to Virginia, and, prior to trial, never again
had face to face contact with Schlee. JA 347. With this background in
mind, I examine all testimony that could conceivably demonstrate actual
interstate transport of the videotape or digital pictures of the victim.

   Schlee testified that he repeatedly urged Crews to destroy the video-
tape of himself and the victim. A "week or two after it was made" (when
Crews was clearly still in North Carolina), Schlee saw Crews
"watching it on TV"; he "told [Crews] many times, including that time,
that he needed to destroy that tape," but Crews refused. JA 341-42. This
testimony does not demonstrate that Crews moved to Virginia with the
victim's videotape or even that he refused to destroy the victim's
videotape after moving to Virginia.

   When an investigation into Crews’s and Schlee’s conduct began,
Crews wrote Schlee a letter implying that the tape of the victim and
Schlee had been destroyed: "[T]he detectives . . . asked me about a tape.
They searched my house for this type [sic] but they never found the
tape. As far as anyone is concerned, that evidence against you has been
destroyed." JA 373. This letter is silent as to when Crews
8                      UNITED STATES v. CREWS
destroyed the tape, and thus provides no basis from which to infer that
Crews transported it to Virginia.

   The only other evidence as to what Crews took to Virginia comes
from Schlee’s testimony in the following exchanges:

    Q:   Did the defendant take his computer with him?

    A:   I’m assuming he took everything.

    Q:   He didn’t leave anything behind?

    A:   Not as far as I know.

    Q:   As far as you know, he took his collection of child

         pornography?

         [Objection. Sustained.]

    Q:   Did he take his computer if you know?

    A:   I don’t know.

JA 344. (Emphasis added). This testimony provides no support for a
finding that Crews took his computer with him to Virginia, perhaps
physically transporting the digital pictures.

  After a subsequent discussion of Crews’s electronic communications
with Schlee after the move, Schlee gave the following testimony:

    Q:   What did he say to you that you took as threats?

    A:    Well, he had said that [the victim]’s mom had been
         calling him while he was down here or in Fayetteville
         and asking wanting to know my name and my address
         down here and everything like that. He said that she
         continued to contact him when he moved to Virginia. His
         explanation was he was trying to protect me, so he was
                        UNITED STATES v. CREWS                           9
          keeping quiet about it but she kept calling him everyday
          [sic] or something like that . . . . It was like if I wasn’t
          polite to him or nice to him or like that then he would tell
          [the victim]'s mom everything that had been going on.

     Q:   Did the defendant at this time, to the best of your know-
          ledge, still have those videotapes that he made of you?

     A:   Yes, sir.

     Q:   Did he ever use those videotapes to threaten exposure
          of those videotapes against you?

     A: Well, it’s the same way as with [the victim]’s mom thing.
        He wouldn’t come out and say if you don’t do this, then
        I’m going to show these to whoever. But whenever he got
        in a foul mood, and I wasn’t doing like I was supposed
        to, then he would mention something like I wonder what
        your mom would think if she saw these videos or
        something like that. I confronted him one time about it.
        He said that the only reason I was hanging around his
        apartment was because if I left he would send those videos
        to my mother. . . .

JA 345-47. (Emphasis added).

   Schlee’s testimony simply does not support a finding that Crews took
the videotape of the victim and Schlee with him when he moved to
Virginia. If, after the move to Virginia, Crews had made a specific threat
to show the Schlee-victim videotape to the victim’s mother or Schlee’s
mother, a jury might be able to infer that Crews had taken it to Virginia.
But there is no such evidence.

   Schlee never testified that Crews threatened to show the victim’s
mother the videotape; instead, Crews simply refused her requests for
information about Schlee. Crews did, according to Schlee, threaten to
show Schlee’s mother some unspecified videotapes, but nothing indi-
10                      UNITED STATES v. CREWS
cates that these threats were made after the move to Virginia; during
the only such conversation that Schlee specifically describes, the men
were plainly together in North Carolina, with Schlee "hanging around
[Crews’s] apartment." JA 347.

   Moreover, the reported threats to show "those videos" to Schlee’s
mother do not even necessarily refer to the one videotape in which the
victim appears, the only one that was a basis for Crews’s child porno-
graphy convictions. Although Crews made only one videotape in which
the victim appears, he made several of Schlee, an adult, masturbating
alone. Crews’s asserted references to "these videotapes" must include
something other than the single Schlee-victim videotape, and might eas-
ily mean only the Schlee solo videotapes.* Nor does the information that
Schlee would not want his mother to see the videotapes in question point
to the Schlee-victim videotape, because Schlee would not have wanted
disclosure of any of the videotapes to his mother.

   For these reasons, I am forced to conclude that the Government has
provided no basis from which a reasonable jury could have found that the
visual depictions of the victim charged in the indictment were actually
transported in interstate commerce.


  *Schlee’s testimony with regard to his "knowledge" as to Crews’s trans-
port of any videotapes to Virginia is weak, given that Schlee conceded that
he was only "assuming" Crews "took everything" to Virginia. JA 341.
