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Media Alerts - USA v. Craig Finley - Third Circuit
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August 13, 2013
  USA v. Craig Finley - Third Circuit
Headline: Third Circuit Affirms Online Child Pornography Convictions

Area of Law: Federal Rules of Evidence; Jury Instructions; Double Jeopardy Clause

Issue(s) Presented: Whether District Court abused its discretion in presenting video and images of child pornography to jury in violation of Federal Rules of Evidence 403, providing incorrect jury instructions, and imposing sentences in violation of the Double Jeopardy Clause?

Brief Summary: Craig Alan Finley appealed the U.S. District Court for the Western District of Pennsylvania's judgment of conviction and sentence of 50 years imprisonment followed by a life term of supervised release for production, receipt, distribution, and possession of material depicting the sexual exploitation of a minor. In his appeal, Finley alleged that the District Court erred in showing the jury explicit videos found on his computers after the government rejected his offer to stipulate that the images were child pornography; and argued that the prejudicial effect outweighed the probative value of the images. The Third Circuit affirmed.

Extended Summary: An investigation by FBI Agents in Los Angeles and Rochester began in 2010. Agents performed undercover investigations using GigaTribe, a peer-to-peer online file-sharing program. Agents engaged in chats with Finley, using an online screen name, and Finley allowed the agents to access his personal files, which included videos and images of child pornography. After Finley implied that he was sexually involved with a child, one agent asked for the child's name and Finley gave it. Agents then traced the IP address and discovered that the IP address belonged to Craig Finley of Titusville, Pennsylvania.

An agent from the Erie, PA office of the FBI became involved in the investigation, and in December 2010 executed a search warrant for Finley's apartment. Finley was not at home, but the agent found a running computer and after waking it, he was able to identify a GigaTribe account with Finley's screen name and found images of child pornography that appeared to take place in his home. An expert in computer forensics conducted examinations of two computers seized from Finley's apartment and found approximately 30,000 videos and images of child pornography on the computers.

On July 12, 2011 a grand jury indicted Finley on four-counts: Count One, production of material depicting the sexual exploitation of a minor in violation of 18 U.S.C. § 2251(a), (e); Count Two, receipt of material depicting the sexual exploitation of a minor in violation of 18 U.S.C. § 2252(a)(2), (b)(1); Count Three, distribution of material depicting the sexual exploitation of a minor in violation of 18 U.S.C. § 2252(a)(2), (b)(1); and Count Four, possession of material depicting the sexual exploitation of a minor in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2). After pleading not guilty, Finley went to trial.

Before selecting the jury, defense counsel offered to stipulate that the images found on Finley's computers were in fact child pornography, on the condition that the images would not be shown to the jury. The government refused and the District Court ruled that the government was not required to accept the defense's offer. The judge also instructed the jury on the nature of the images and that it was necessary to set aside any personal feelings and fairly consider the evidence.

During the trial, the defense first objected to four videos that the government intended to show the jury as unfairly prejudicial under Rule 403 of the Federal Rules of Evidence. The District Court allowed the admission of the videos, but defense again objected, stating that the court still had to balance the probative value and prejudicial effect of the videos as required under Rule 403. The judge ruled that the probative value outweighed any possible prejudice and the four videos were shown to the jury. Defense objected to nine other videos and two images, and the District Court allowed their admission. Defense later objected a third time to showing images, arguing that the jury had reached a "saturation point." The District Court again ruled the same.

During the charge conference, defense objected to Count One, as the government's proposed jury instruction stated that "even a sleeping child can engage in sexually explicit conduct when, for example, another person uses the child to create sexually explicit conduct." The District Court modified, but allowed, the instruction and after the government rested its case, defense made a motion for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure and argued that a sleeping child cannot "engage" in sexually explicit conduct. The government's evidence showed that the child at issue was asleep at the time of event in question. The District Court denied the motion, stating that under the legal definition the child did engage in sexual activity. After the District Court charged the jury, defense renewed their objection and the District Court declined to change its position.

On January 26, 2012 the jury returned a verdict of guilty on all four counts against Finley. After the verdict, Finley also objected to the Presentence Sentencing Report (PSR) by argued that Counts Two and Three for receipt and distribution of material depicting the sexual exploitation of a minor were violations of the same statutory provision, and to serve consecutive punishments for the two counts would violate the Double Jeopardy Clause of the Fifth Amendment. The District Court concluded that the separate punishments would not violate the Double Jeopardy Clause because the nature of the peer-to-peer network and the Defendant's conduct in trading images established that the charges of receipt and distribution were not identical.

On appeal to the Third Circuit, Finley contended that the District Court committed procedural and substantive errors at trial with respect to Rule 403. Because Rule 403 requires an on-the-spot balancing of probative value and prejudice, as long as the District Court did conduct a 403 analysis, the ruling would be upheld unless the District Court has abused its discretion. Finley argued that the District Court committed a procedural error by not conducting the 403 balancing analysis on the record. However, the Third Circuit held that the District Court did directly refer to the analysis on the record by stating that the probative value outweighed the prejudicial effect and therefore the District Court conducted a proper 403 analysis. Finley also argued that the District Court committed a substantive 403 violation because the defense offered to stipulate that the videos and images contained child pornography and therefore the images had no probative value and should not have been admitted. However, the Third Circuit held that the videos and images were probative of a material fact, that Finley knowingly received, distributed, and possessed child pornography. While some images were extremely disturbing and absolutely prejudicial, their presentation was not unfairly prejudicial to the point where unfair prejudice substantially outweighed probative value.

Finley also appealed his conviction of Count One, by asserting that the District Court erred in instructing the jury that a sleeping child can "engage in" sexually explicit conduct. However, the Third Circuit interpreted the statute as indicating that active involvement on the part of a minor is not essential for conviction because Section 2251(a) of the statute pertains to a person who "employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit conduct." The court also noted that to interpret the statute otherwise would be against obvious policy of the statute. Finally, Finley asserted that the District Court violated his protection against Double Jeopardy by his separate convictions for Counts Two and Three. However, the Third Circuit held that the Jeopardy clause is not implicated when multiple separate violations of the same statute are charged in multiple counts. Because Finley distributed certain images and distributed other images the charges were not the same.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/122524p.pdf

Panel: Circuit Judges Smith, Fisher, and Chagares

Argument Date: 05/14/2013

Argument Location: Philadelphia

Date of Issued Opinion: 08/12/2013

Docket Number: No. 12-2524

Decided: Affirmed

Case Alert Author: Larissa Staszkiw

Counsel: Karen S. Gerlach, Esq., Office of Federal Public Defender, Counsel for Appellant; David J. Hickton, Esq., Robert L. Eberhardt, Esq.,¿Rebecca R. Haywood, Esq., Christian A. Trabold, Esq., Office of United States Attorney; Counsel for Appellee

Author of Opinion: Judge Fisher

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/13/2013 08:46 AM     3rd Circuit  

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