U.S. v. PALOMINO-CORONADO, NO. 14-4416

Decided: November 5, 2015

The Fourth Circuit reversed and vacated the district court’s ruling.

Defendant, Anthony 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 U.S.C. § 2251(a).

On May 3, 2012, Prince George’s county police offers were called to a home in response to a report of a missing seven-year-old girl, B.H. Police eventually found B.H. who had been sexually assaulted. At a hospital, B.H. was examined and the nurse found that B.H.’s hymen had been torn and that she had an infection, indicating that the sexual activity had also occurred previously. Detective Cleo Savoy interviewed B.H. During the unrecorded portion of the interview, B.H. told Savoy that the Defendant kissed her and had sex with her. However, once the interview began to be recorded, B.H. denied having any sexual intercourse with Defendant. On the same day, police seized Defendant’s cell phone and found several photos of B.H., as well as deleted sexually explicit photos. On May 15, 2012, Martha Finnegan, and FBI child forensic interview specialist, interviewed B.H. During that interview, B.H. told Finnegan that she and Defendant had sexual contact.

At trial, B.H. testified that Defendant had touched her private parts on several occasions and that she was afraid to tell the police the truth in her first interview. She identified herself and Defendant in the pictures from his cell phone, including the sexually explicit photo. Finnegan also testified at trial. As part of her testimony, she evaluated B.H.’s interview with Detective Savoy and explained that it was coercive and did not follow established protocols. Finnegan also testified about her own conversation with B.H., where B.H. told her that Defendant and B.H. had engaged in sexual conduct. At the close of trial, Defendant motioned for acquittal based on insufficient evidence pursuant to Federal Rule of Criminal Procedure 29, which the district court denied. Defendant wa found guilty.

On appeal, the Court noted that it must affirm the district court’s verdict if it is supported by substantial evidence, viewed in the light most favorable to the government. Substantial evidence is “evidence that a reasonable fact finder of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt. Defendant contended that the government failed to prove one of the elements of § 2251(a) that he acted for the purpose of producing a visual depiction. Section 2251 contains a specific intent element, therefore the government was required to prove that production of a visual depiction was a purpose of engaging in the sexual activity. The Court found that the evidence produced at trial did not support the conclusion that Defendant engaged in sexual conduct with B.H. for the purpose of producing a picture. The fact that Defendant took one photo of B.H. does not show that he engaged in sexual activity with her only to take that picture. The Court stressed that to find otherwise would eliminate the specific intent requirement, thus turning Section 2251 into a strict liability offense. Therefore, the Court held that the government produced insufficient evidence to show that Defendant acted for the purpose of producing a visual depiction of the sexual act.

Accordingly, the Court reversed and vacated the judgment of the district court.

Full Opinion

Meredith Weisler

 

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