

                  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
