United States Court of Appeals, District of Columbia Circuit
November 16, 2017
from the United States District Court for the District of
Columbia (No. 1:15-cr-00135-1)
G. Roland, Assistant Federal Public Defender, argued the
cause for appellant. With her on the briefs was A.J. Kramer,
Federal Public Defender. Tony Axam, Jr., and Beverly Gay
Dyer, Assistant Federal Public Defenders, entered
Valinda Jones, Assistant U.S. Attorney, argued the cause for
appellee. With her on the brief were Elizabeth Trosman and
John P. Mannarino, Assistant U.S. Attorneys.
Before: Griffith and Pillard, Circuit Judges, and Williams,
Senior Circuit Judge.
PILLARD, CIRCUIT JUDGE.
teenage boy, testified at trial that Defendant-Appellant
Franklin Torres, an adult twice his age, had anal sex with
him, and that during the same encounter Torres used his cell
phone to take four photographs of J.A.'s erect penis
while J.A. was lying on his back alone on his parents'
bed, naked, with his hands covering his face. Torres posted
one of the photos to Facebook, and all four were later
discovered on Torres's phone. The jury convicted Torres
under District of Columbia law of sexually abusing a minor,
and under federal law of producing, possessing, and
distributing child pornography.
appeals his convictions of producing child pornography based
on the photos of J.A.'s exposed genitals, and of sexual
abuse based on the anal intercourse with J.A. He challenges
his child pornography conviction because, in his view, no
jury could reasonably conclude that he induced J.A. to engage
in "sexually explicit conduct"-which, under the
statute, includes "lascivious exhibition of the
genitals," 18 U.S.C. § 2256(2)(A)(v)-specifically
"for the purpose of producing" the photos,
id. § 2251(a). He also challenges the sex-abuse
conviction because, he contends, the government impermissibly
elicited crucial testimony with a leading question.
that the jury heard sufficient evidence from which to infer
that Torres induced J.A.'s lascivious exhibition of his
genitals in order to photograph it, including evidence that
Torres held J.A.'s penis toward the phone's camera in
taking one of the pictures, as well as evidence that he lied
to J.A. that he had deleted the photos when he in fact
retained them for later use. As to the form of the
government's questions, we hold that the district court
had discretion to let the government ask J.A., a very
reticent witness, to clarify the nature of his sexual contact
with Torres in the manner that it did. We thus affirm both
crimes of which Torres was convicted took place while he
shared a one-bedroom apartment with his childhood friend
Andrea, her husband, and their five children-including J.A.,
then sixteen years old. (To protect J.A.'s privacy, we
use his initials and omit his mother's surname.)
J.A.'s parents agreed to let Torres move in with the
family in January 2014, during a period when Torres was
unemployed and struggling to afford a place to live. Torres
was in his early thirties.
August or September of 2014, Torres posted a photo to
Facebook, where Andrea caught a glimpse of it. The picture
showed a naked teenage boy with his erect penis prominently
displayed. Andrea did not at first recognize the boy, who was
shielding his face with his arm. Andrea confronted Torres
about the post. According to Andrea, Torres got "very
nervous," said that the boy in the photo was his
"boyfriend," and explained that he was
"drunk" and "mad" when he posted it.
Transcript of Trial at 96, 98, United States v.
Torres, No. 15-1345 (D.D.C. Mar. 8, 2016) (3/8/16 Tr.).
Torres expressed concern that J.A.'s father might have
seen the photo and, if so, would think the
"boyfriend" was J.A.
troubled by the episode, set out to investigate the contents
of Torres's cell phone. Finding it password-protected,
she surreptitiously removed its memory card and downloaded
the contents to the family computer. She later hunted through
the many images she found, eventually locating the photo she
had seen on Facebook. Upon closer inspection, she realized
that the photo was taken on her bed, and that the young man
in the picture was J.A. She also found three other nude
pictures of J.A. on the phone, evidently taken during the
same afternoon. All four photos, taken from a vantage point
near J.A.'s knees, looking up along his outstretched
body, depict J.A. lying back on the bed covering his face
with his arm, with his genitals prominently displayed. In one
photo, the most zoomed-in of the four, Torres's hand can
be seen reaching forward from outside the frame, placing his
fingers behind the shaft of J.A.'s penis to tilt it
toward the camera.
again confronted Torres. He begged for forgiveness, saying he
was drunk when he took the pictures, and claimed that J.A.
had initiated the sexual encounter. Torres moved out of the
apartment, after which Andrea showed J.A.'s father the
photos she had found. Together, they asked J.A. about the
photos, and what happened between him and Torres. In
response, J.A. wept and was only able to say "[n]o, no,
no." Id. at 125-26. J.A.'s parents then
took the photos to the police, who interviewed J.A. and
seized the phone and the family computer. A forensic analysis
of Torres's phone, and of the image files, corroborated
Andrea's account of finding the photos on Torres's
was arrested and charged with production, possession, and
distribution of child pornography, in violation of federal
law. See 18 U.S.C. §§ 2251(a), 2252(a)(2).
He was also charged, under District of Columbia law, with
first degree sexual abuse of a minor. See D.C. Code
trial, J.A.'s parents testified about finding the images
on the memory card of Torres's phone, and a digital
evidence recovery specialist who later analyzed the images
described his findings. The government introduced all four
photos in evidence.
testified, through a translator because Spanish is his
primary language, as the government's last trial witness.
J.A. reviewed the four photos, described for the jury what
was going on in them, and recounted how Torres took them. He
said Torres took all four photos in quick succession, with
his phone, and that Torres was fully clothed at the time.
J.A. testified that he did not want to be photographed and
that he had asked Torres to delete the pictures, to which
Torres replied- falsely-that he already had.
next testified about "what happened right before
[Torres] took those pictures," Transcript of Trial at
104, United States v. Torres, No. 15-1345 (D.D.C.
Mar. 9, 2016) (3/9/16 Tr.), describing the following sequence
of events: He and Torres were alone in the living room
watching television when Torres rested his hand on J.A.'s
thigh. Torres then went into the bedroom, telling J.A. that
he wanted to show him something. J.A. followed, and once they
were in the bedroom Torres removed J.A.'s clothes, over
resistance from J.A. J.A. recalled feeling "bad"
and "uncomfortable" at that point. Id. at
109. When the prosecutor then asked J.A. to describe what
Torres did next, J.A. did not respond, and the district judge
called a ten-minute recess-apparently to allow J.A. to
the recess, the government commenced a line of questioning
geared toward determining whether and how Torres
"touch[ed]" J.A. once he was naked. Id. at
110. J.A. testified that Torres's hand touched his penis
while they were both standing, and that after Torres told
J.A. to lie down on the bed, Torres's "back
part" also touched his penis. Id. at 111. Then
the following exchange occurred:
Q. Okay. And when you say "his back part," what do
A. (No response.)
Q. [J.A.], do you know another name for [Torres]'s back
A. (No response.)
Q. [J.A.], can I have you look up at me? Can you tell me
another name for [Torres]'s back part?
A. (Through the Interpreter) His butt.
Q. [J.A.], did your penis go inside of [Torres]'s butt?
A. (Through the Interpreter) Yes.
Id. at 111-12. Defense counsel did not object to
those questions, but objected unsuccessfully when J.A. next
testified in a similar fashion that Torres performed oral sex
on him. Id. at 112-13. After the prosecutor asked which
of the two forms of penetration occurred first, defense
counsel asked for a sidebar, during which he moved for a
mistrial on the ground that the Government had asked the
"ultimate question" in a "yes or no"
form. Id. at 113-14. The district court responded
that, in light of the subject matter, J.A.'s age, and his
reticence, the government should have "some leeway"
to ask "leading" questions. Id. at 113.
The court declined to grant a mistrial.
testimony was the only description of the encounter that the
jury heard. Torres, testifying in his own defense, denied
ever having sex with J.A. or taking any of the pictures.
close of the government's evidence, and again at the end
of trial, Torres moved for acquittal on the charge of
producing child pornography, claiming that the government had
offered no evidence that Torres was "motivated by the
intent to photograph" J.A., and that the pictures were
only "incidental" and "collateral" to the
sexual intercourse. Id. at 121-22; see
Transcript of Trial at 84, 157-58, United States v.
Torres, No. 15-1345 (D.D.C. Mar. 10, 2016) (3/10/16
Tr.). The district court denied the motions. 3/9/16 Tr. 126,
128; 3/10/16 Tr. 84, 157-58. Later, instructing the jury on
the production count, the court cautioned that "[i]t is
not enough for the Government to simply show that the
defendant took the photographs on purpose," but that
"the Government must show beyond a reasonable doubt that
defendant's actions were motivated by the intent of
producing child pornography." 3/10/16 Tr. 99.
court also instructed that to convict the defendant of
production of child pornography the jury would have to find
the defendant "did employ, use, persuade, induce, entice
or coerce the victim to engage in sexually explicit conduct
for the purpose of producing a visual depiction of such
conduct," id. at 95, and that "lascivious
exhibition of the genitals or pubic area of any person"
meets the statute's definition of sexually explicit
conduct, id. at 97. The court further explained that
"lascivious exhibition means indecent exposure of the
genitals or pubic area, usually to incite lust," and
that "[n]ot every exposure is a lascivious
jury convicted Torres on all four counts. He received
concurrent sentences: five years for the physical sexual
abuse, ten each for the child pornography possession and
distribution counts, and twenty-one years for the production
of child pornography.
contends that his conviction for production of child
pornography in violation of 18 U.S.C. § 2251(a) was
invalid for want of sufficient evidence from which the jury
could conclude that he used or induced J.A. to engage in
sexually explicit conduct "for the purpose of"
taking the photos, as Section 2251(a) requires. Because we
hold that the jury could reasonably find the requisite
purpose based on the evidence before it, we affirm the child
defendant seeking to overturn a conviction for lack of
sufficient evidence faces a "heavy burden."
United States v. Borda, 848 F.3d 1044, 1053 (D.C.
Cir. 2017) (quoting United States v. Branham, 97
F.3d 835, 853 (6th Cir. 1996)). "We review
sufficiency-of-the-evidence claims 'in the light most
favorable to the government, drawing no distinction between
direct and circumstantial evidence, '" and we give
"'full play'" to the jury's prerogative
"'to determine credibility, weigh the evidence and
draw justifiable inferences of fact.'" United
States v. Vega, 826 F.3d 514, 522 (D.C. Cir. 2016)
(quoting United States v. Dykes, 406 F.3d 717, 721
(D.C. Cir. 2005)). By thus asking only whether
"any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt," our deferential review "impinges upon jury