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United States v. Torres

United States Court of Appeals, District of Columbia Circuit

December 21, 2018

United States of America, Appellee
Franklin Jovany Torres, Appellant

          Appeal from the United States District Court fr the District of Columbia (1: 15 -cr-00135-1)

         On Petition for Panel Rehearing

          Before: GRIFFITH and PILARD, Circuit Judges, and Williams [*] , Senior Circuit Judge.


          PER CURIAM.

         Upon consideration of appellant's petition for panel rehearing filed on August 16, 2018, and the response thereto, it is

         ORDERED that the petition be denied.

          Williams, Senior Circuit Judge, dissenting from the denial of rehearing:

         18 U.S.C. § 2251(a) is but one part of Congress's broader scheme to combat child sexual abuse. It singles out for especially heavy penalties those defendants who not only induce a minor to engage in "sexually explicit conduct," but who do so "for the purpose of producing pornography. Id. (emphasis added). Related provisions target possession of child pornography and sex with a minor-see, e.g., id. § 2252; D.C. Code § 22-3009.01-crimes for which Franklin Torres has already received ten years' imprisonment, see J.A. 22.

         This appeal raises two important and recurring issues about the "purpose" element of § 2251(a). The first concerns the requirement that pornographic intent must have been "the dominant motive" of the defendant's sexual conduct. 894 F.3d 305, 319-20 (D.C. Cir. 2018) (Williams, J., dissenting) (quoting Mortensen v. United States, 322 U.S. 369, 374 (1944)). As my dissent explains (at 320), the panel wrongly diluted this requirement by adopting the oxymoronic notion of "a" dominant motive, see id. at 315 (majority opinion). Other circuits, however, had already taken this path, see, e.g., United States v. Lebowitz, 676 F.3d 1000, 1014(11th Cir. 2012), so the panel's decision-wrong as it is-cannot be said to have created a circuit split.

         But on the second issue, the panel broke new ground. Until now, the courts of appeals have insisted (rightly, in my view) that the government link the defendant's "purpose" to his "sexually explicit conduct," taken as a coherent whole. Our sister circuits have thus resisted any analysis under which an encounter's photographic purpose is proven simply by the picture-taking itself. See United States v. Palomino-Coronado, 805 F.3d 127, 132 (4th Cir. 2015). Instead they have rested on evidence connecting the defendant's photographic purpose to a more broadly conceived encounter-evidence that he sent the victim money for a webcam, United States v. Pier son, 544 F.3d 933, 939 (8th Cir. 2008); obtained a Polaroid camera, United States v. Raplinger, 555 F.3d 687, 693 (8th Cir. 2009); requested, in advance, a specific number of pictures, United States v. Lee, 603 F.3d 904, 910, 918 (11th Cir. 2010); broke off the encounter to retrieve recording materials from his car, United States v. Morales-de Jesus, 372 F.3d 6, 21-22 (1st Cir. 2004); lugged a camera and tripod through a bedroom window, Lebowitz, 676 F.3d at 1013; or chose a location based on its suitability for filming, id.; United States v. Sirois, 87 F.3d 34, 42 (2d Cir. 1996).

         What courts have not done is arbitrarily break down a defendant's conduct millisecond by millisecond- disaggregating a single sexual encounter into "different instances of sexually explicit conduct," assigning a "distinct purpose[]" to each minutely defined stage. 894 F.3d at 314. For good reason. Apart from running (as my dissent explains at 322) headlong into Mortensen, this "artificial and unrealistic view of the nature and purpose," 322 U.S. at 376, of sexual intercourse all but reads the "purpose" element out of the statute-for lovers and predators alike. As the panel sees it, any picture-snapping during an assembly of two or more people (including at least one minor) that displays "any person['s]" pubic region will be virtually certain to support the inference that that instance of "sexually explicit conduct"-a so-called "lascivious exhibition"-was "for the purpose of producing pornography. See 18 U.S.C. §§ 2251(a), 2256(2)(A)(v). That is so even when the "lascivious exhibition" was but one part of a continuous sexual encounter whose overall purpose- pleasure, perhaps-was plainly not photography.

         To downplay the novelty of its decision, the panel plucks a few words from United States v. Ortiz-Graulau, 526 F.3d 16 (1 st Cir. 2008), arguing that under that opinion the "jury needed to find only that 'at least some of [the] sexual conduct had the requisite purpose, not all of it." 894 F.3d at 314 (quoting Ortiz-Graulau, 526 F.3d at 19). But Ortiz-Graulau (it seems to me) concerned not "some of the disaggregated steps of a single sexual encounter-as the majority would have it-but "some of the sexual encounters themselves, viewed as a coherent whole. The case involved, after all, the defendant's six-month long "marital-like" relationship with a minor and the numerous sexually explicit pictures that he had developed on "several occasions." 526 F.3d at 17-18.

         The panel denies any conflict with Palomino-Coronado, 805 F.3d 127-but only halfheartedly: "That case is not binding on this court, and we need not opine on its correctness . . . ." 894 F.3d at 313. There, our colleagues on the Fourth Circuit were surely correct in saying that a defendant's "use of his cell phone to take pictures"-like Torres's use here-"is a far cry from the tripod and other recording equipment used to support purpose in other cases." 805 F.3d at 133. "Whereas those devices demonstrate some sort of forethought, planning, or intent," id., the use of a cell phone- now ubiquitous in our society-shows only that a defendant "engaged in sexual activity with [a minor] and took a picture," not that he "engaged in sexual activity . .. to take a picture," id. at 132.

         * ...

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