16-1807-cr
United States v. Naim
                          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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 10th day of October, two thousand seventeen.

PRESENT: REENA RAGGI,
                 PETER W. HALL,
                 SUSAN L. CARNEY,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                          Appellee,

                        v.                                                 No. 16-1807-cr

ROY NAIM,
                                          Defendant-Appellant.
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APPEARING FOR APPELLANT:                          JOHN ESPOSITO (Arthur L. Aidala, Aidala,
                                                  Bertuna & Kamins, P.C., New York, New
                                                  York, on the brief), Law Office of John
                                                  Esposito, New York, New York.

APPEARING FOR APPELLEE:                          SARITHA KOMATIREDDY, Assistant United
                                                 States Attorney (Emily Berger, Assistant United
                                                 States Attorney, on the brief), for Bridget M.
                                                 Rohde, Acting United States Attorney for the
                                                 Eastern District of New York, Brooklyn,
                                                 New York.




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       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Nicholas G. Garaufis, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on June 6, 2016, is AFFIRMED.

       Defendant Roy Naim stands convicted after a jury trial of receipt and possession

of child pornography, see 18 U.S.C. § 2252(a)(2), (a)(4)(B), and attempted sexual

exploitation of a child, see id. § 2251(a), for which he was sentenced to 180 months’

imprisonment. On appeal, Naim challenges the denial of his motions for acquittal, see

Fed. R. Crim. P. 29, and a new trial, see Fed. R. Crim. P. 33, on the attempted sexual

exploitation count, arguing that the trial evidence was insufficient to support both the

“intent” and “substantial step” elements of attempt.

       We review the Rule 29 denial de novo, see United States v. Khalil, 857 F.3d 137,

139 (2d Cir. 2017), and the Rule 33 denial for abuse of discretion, which we will identify

only if the district court’s decision rests on an error of law or clearly erroneous fact-

finding, or if its decision cannot be located within the permissible range available to the

district court, see United States v. Forbes, 790 F.3d 403, 406 (2d Cir. 2015). A defendant

challenging the sufficiency of the evidence bears “a very heavy burden,” United States v.

Abu-Jihaad, 630 F.3d 102, 135 (2d Cir. 2010) (internal quotation marks omitted),

because we must view the evidence in the light most favorable to the government, and we

must affirm if “‘any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt,’” United States v. Pierce, 785 F.3d 832, 837 (2d Cir.

2015) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in Jackson)). In

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applying these standards here, we assume the parties’ familiarity with the facts and record

of prior proceedings, which we reference only as necessary to explain our decision to

affirm for substantially the reasons stated by the district court in its thorough opinion.

See United States v. Naim, No. 13-CR-660 (NGG), 2015 WL 3440253 (E.D.N.Y. May

20, 2015).

1.    Intent

      To prove an attempt to commit a crime, the government must adduce evidence that

the defendant (a) intended to commit the object crime—here, “employ[ing], us[ing],

persuad[ing], induc[ing], entic[ing], or coerc[ing] any minor to engage in . . . any

sexually explicit conduct for the purpose of producing any visual depiction of such

conduct” in violation of 18 U.S.C. § 2251(a)—and (b) engaged in conduct amounting to a

substantial step towards its commission. See United States v. Farhane, 634 F.3d 127,

145 (2d Cir. 2011).

      Like the district court, we conclude that the evidence, viewed most favorably to

the government, allowed a reasonable jury to find that Naim intended to have Jonathan

Johnson create for him a sexually explicit video of minor John Doe. Emails between

Naim and Johnson, the operator of the child pornography website BoysOnWebcam, show

that Naim understood that Johnson personally created the videos on his website, by

deceiving minors into performing sexual activities that he surreptitiously recorded. These

emails further demonstrate that when Johnson informed Naim there were no additional

existing videos of John Doe beyond the two that Naim had already obtained, Naim asked

Johnson to “get another one” for him.       App’x 955.     When Naim received a third

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pornographic John Doe video, Johnson informed Naim that he had recorded the minor

“just for you,” contacting Naim “[l]ess than an hour” after making the recording. Id. at

1012. Possessing all this knowledge, Naim then repeatedly requested from Johnson a

fourth John Doe video. See id. at 1118 (“Can we do another [John Doe]?”); id. at 1175

(“hey think you can get [John Doe] again”), id. at 1182 (“Hey. Think you can get [John

Doe] again?”); id. at 1192 (“and btw – llet [sic] me know if you ever get that [John Doe]

dude again”). Such evidence was sufficient for a reasonable jury to conclude that, when

Naim requested the fourth John Doe video, he did so with the culpable intent that

Johnson sexually exploit the child.

       In urging otherwise, Naim argues that the district court conflated knowledge and

intent, substituting evidence of what Naim knew regarding Johnson’s activities for

evidence that he intended to have Johnson create another pornographic video. We are not

persuaded. Evidence that Naim knew there were no additional existing pornographic

videos of John Doe and that Johnson obtained new videos by creating them himself,

coupled with Naim’s repeated requests for an additional video, permitted a reasonable

jury to infer that Naim made his requests intending for Johnson further to sexually exploit

the child. Accordingly, evidence regarding the knowledge that Naim gained from his

communications with Johnson does not here substitute for evidence of intent, but rather

supports an inference as to Naim’s sexually exploitive intent in requesting an additional

video. See United States v. Crowley, 318 F.3d 401, 409 (2d Cir. 2003) (recognizing that

“the question of [a defendant’s] intention” must generally be inferred because it is “rarely

susceptible to proof by direct evidence”); see also United States v. McGee, 821 F.3d 644,

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647–48 (5th Cir. 2016) (rejecting sufficiency challenge to intent element of conviction

for attempted sexual exploitation of a child because jury could “draw the inference

between [the] defendant’s solicitation [of a sexually explicit picture] and the production

of a pornographic image” where email evidence showed defendant “knew that [the

minor] would have to take a new picture” (emphasis in original)).

       Nor is a different conclusion warranted by Naim’s contention that he was merely a

“customer” or “purchaser,” rather than a “creator,” of the pornographic content on

Johnson’s website. Appellant’s Br. 32. As the district court explained, the purchase of a

fourth John Doe video necessitated the creation of that video, which the evidence

establishes Naim well knew. The jury could therefore infer from Naim’s attempts to

purchase such a video that he intended for Johnson to create one for him by again

sexually exploiting the child. See United States v. Sheehan, 838 F.3d 109, 119 (2d Cir.

2016) (stating that court reviewing sufficiency challenge must “credit[] every inference

that could have been drawn in the government’s favor” (internal quotation marks

omitted)). Accordingly, Naim’s urged distinction between an intent to purchase and an

intent to create child pornography is unavailing as applied to the record in this case.

2.     Substantial Step

       The substantial step required for attempt “must be something more than mere

preparation, yet may be less than the last act necessary before the actual commission of

the substantive crime.” United States v. Farhane, 634 F.3d at 147 (internal quotation

marks omitted). The district court found that Naim’s requests to Johnson for a fourth

John Doe video were sufficient to constitute a substantial step. We agree.

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      United States v. Martinez, 775 F.2d 31 (2d Cir. 1985), and United States v.

Abdallah, 528 F. App’x 79 (2d Cir. 2013) (summary order), on which Naim relies, are

not to the contrary. While the Martinez defendant was convicted of attempted murder on

evidence that he had given his accomplice a down payment for the murder, “thereby

taking the last step . . . to accomplish the actual commission of the crime,” 775 F.2d at

35, this court has made clear that a substantial step “may be less than the last act

necessary before the actual commission of the substantive crime,” United States v.

Farhane, 634 F.3d at 147 (internal quotation marks omitted). Indeed, the Abdallah

defendant’s placement of a phone call giving instructions for stock purchases as part of a

stock manipulation scheme sufficed to establish a substantial step “in the context of . . .

prior dealings” between the defendant and the phone call recipient. 528 F. App’x at 83.

So, in this case, a reasonable jury could have found that Naim’s repeated requests to

Johnson for a fourth video of John Doe constituted a substantial step in the sexual

exploitation of a child precisely because of the context of prior dealings in child

pornography between Naim and Johnson. While Naim argues that his requests did not in

fact “set . . . wheels in motion,” because John Doe’s resistance made a fourth video

impossible, Appellant’s Br. 39, that does not distinguish this case from Abdallah, in

which the recipient of the defendant’s phone call “never actually placed the buy orders he

discussed with Abdallah,” 528 F. App’x at 82.

      Insofar as Naim argues that his efforts merely to “purchase” another video cannot

constitute a substantial step towards the crime of “creat[ing]” such a video, Appellant’s



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Br. 37, we have already determined that the urged distinction between purchase and

creation is unpersuasive on the facts of this case.

       In sum, the evidence was sufficient for a reasonable jury to find that Naim both

intended for and took a substantial step toward having Johnson sexually exploit a minor

in violation of 18 U.S.C. § 2251(a) in order to provide Naim with further child

pornography.

3.     Conclusion

       We have considered all of Naim’s remaining arguments and conclude that they are

without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O=HAGAN WOLFE, Clerk of Court




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