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United States v. Torres

United States Court of Appeals, District of Columbia Circuit

July 3, 2018

United States of America, Appellee
v.
Franklin Jovany Torres, Appellant

          Argued November 16, 2017

          Appeal from the United States District Court for the District of Columbia (No. 1:15-cr-00135-1)

          Sandra 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 appearances.

          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.

         J.A., a 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.

         Torres 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.

         We hold 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 convictions.

         I.

         The 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.

         In 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.

         Andrea, 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.

         Andrea 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 phone.

         Torres 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 § 22-3009.01.[1]

         At 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.

         J.A. 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.

         J.A. 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 compose himself.

         After 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 you mean?
A. (No response.)
Q. [J.A.], do you know another name for [Torres]'s back part?
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.[2] 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.

         J.A.'s 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.

         At the 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.

         The 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 exhibition." Id.[3]

         The 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.

         II.

         Torres 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 pornography conviction.

         A 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 ...


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