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Media Alerts - United States v. Palomino-Coronado -- Fourth Circuit
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December 3, 2015
  United States v. Palomino-Coronado -- Fourth Circuit
After Defendant Has Sex with Minor Is One Picture Enough to Prove Intent Under §2251(a)?

Areas of Law: Criminal Law

Issues Presented: Whether there was sufficient evidence to convict Anthony Palomino-Coronado under §2251(a); and whether the district court improperly denied Palomino-Coronado's motion for judgment of acquittal under Federal Rule of Civil Procedure ("FRCP") 29.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit ("the court") held that the facts presented did not support the conclusion that Palomino-Coronado engaged in sexual activity with B.H. in order to take a picture. The court stated, "all the record shows is that [Palomino-Coronado] had engaged in sexual activity with B.H. on more than one occasion; that he had taken several non-sexually explicit pictures of her with his [cellphone] in his basement; and that one sexually explicit picture was taken." Finally, the court attempted to narrow its holding by stating that a situation can present itself where "only one photograph was taken but where there was other evidence of purpose, and we do not hold that a sufficiency challenge would necessarily fall in that instance." However, the court felt that was not the case here, and as a result, reversed and vacated.

Extended Summary: On May 3, 2012, Prince George's County police officers responded to a home in Laurel, Maryland based on a report of a missing seven-year-old child, B.H. Officers found B.H. at the fence that separated her house and her neighbor's house. Her neighbor was Anthony Palomino-Coronado, a nineteen-year-old male. Police officers took B.H. to the hospital and a sexual assault exam was performed. The exam found there had been vaginal penetration and that B.H. had a vaginal infection, most likely the result of continued sexual activity. The nurse at the hospital interviewed B.H. and she told the nurse that she had been at Palomino-Coronado's house the night before, and that she had been there at least 10 times previously.

The detective for the case reported that in an unrecorded interview with B.H. and her caregiver, B.H. said that while at Palomino-Coronado's house he kissed her and they had sex. Detectives got a search warrant and seized Palomino-Coronado's cell phone, where they found a deleted picture of a man penetrating a female child. On May 15, 2012, an FBI child forensic specialist interviewed B.H. During this interview B.H identified the people in the picture recovered from Palomino-Coronado's phone as "B," referring to her, and "A," referring to Palomino-Coronado.

At trial, B.H. testified that Palomino-Coronado had touched her private parts on more than one occasion and also testified that she was scared during her initial interview with the detective because the detective told her that she wouldn't get to go home if she didn't say that she and Palomino-Coronado had had sex. However, B.H. again identified the people in the picture recovered from Palomino-Coronado's phone as "B.H." and "Anthony." The FBI child forensic specialist testified that, in her professional opinion, the interview that the detective conducted with B.H. was coercive and did not follow protocol. However, the specialist also testified about her own interview with B.H., in which B.H. identified the picture and also said that she and Palomino-Coronado had engaged in sexual conduct. After the state presented its case, Palomino-Coronado made a motion for judgment of acquittal based on insufficient evidence pursuant to FRCP 29. The motion was denied and Palomino-Coronado was convicted of knowingly employing, using, persuading, inducing, enticing, or coercing a minor in sexually explicit conduct, for the purpose of producing a visual depiction of that conduct, in violation of 18 USC §2251(a). He was sentenced to 30 years imprisonment.

The United States Court of Appeals for the Fourth Circuit reviewed the case de novo. The court noted that evidence sufficient to sustain the conviction is "evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). A defendant bringing a sufficiency challenge "must overcome a heavy burden," (United States v. Hotye, 51 F.3d 1239, 1245 (4th Cir. 1995)), and reversal for insufficiency must "be confined to cases where the prosecution's failure is clear." Burks v. United States, 437 U.S. 1, 17(1978). This was an issue of first impression for the Fourth Circuit, as it had not previously considered a challenge to the sufficiency of the evidence in a conviction under §2251(a).

Palomino-Coronado contended that the government failed to prove one of the elements of a § 2251(a) charge - specifically that he acted for the purpose of producing a visual depiction. Citing the First, Third and Eleventh Circuits, the Fourth Circuit found that § 2251(a) contains a specific intent element. In other words, under the statute, the government is required to prove that production of a visual depiction was a purpose of engaging in the sexually explicit conduct. (United States v. Lebowitz, 676 F.3d 1000, 1013 (11th Cir. 2012)). The government cannot just say "the photo speaks for itself." (United States v. Crandon, 173 F.3d 122, 129 (3rd Cir. 1999)).

Applying the law to the facts of this case, the court held that the evidence at trial did not support the conclusion that Palomino-Coronado engaged in sexual activity with B.H. for the purpose of producing a picture. The government did not offer direct evidence or statements indicating intent and there was no testimony that Palomino-Coronado gave any instruction or direction to B.H. as part o their sexual encounter that would indicate purpose. The court stated, "all the record shows is that [Palomino-Coronado] had engaged in sexual activity with B.H. on more than one occasion; that he had taken several non-sexually explicit pictures of her with his [cellphone] in his basement; and that one sexually explicit picture was taken." These facts, according to the court, did not support the conclusion that Palomino-Coronado engaged in sexual activity with B.H. in order to take a picture, and "to hold otherwise would eliminate the specific intent requirement under § 2251(a) into a strict liability offense."

Finally, the court attempted to narrow its holding by stating that a situation can present itself where "only one photograph was taken but where there was other evidence of purpose, and we do not hold that a sufficiency challenge would necessarily fall in that instance." However, the court felt that was not the case here, and as a result, reversed and vacated.

To read the full opinion, click here.

Panel: Judges Motz, King, and Gregory.

Argument Date: 09/17/2015

Date of Issued Opinion: 11/5/2015

Docket Number: No. 14-4416

Decided: Reversed and vacated by published opinion.

Case Alert Author: Eric Suárez, Univ. of Maryland Carey School of Law

Counsel: Argued: Joanna Beth Silver, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Kristi Noel O'Malley, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. On brief: James Wyda, Federal Public Defender, OFFICE OF THE PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Author of Opinion: Judge Gregory

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/03/2015 03:55 PM     4th Circuit  

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