'Purpose' necessary in proving child pornography

By Heath Hamacher
The Daily Record Newswire
RALEIGH — Taking a picture of a sex act with a minor is not enough to prove a defendant engaged in the act for the purpose of producing a visual depiction, the 4th U.S. Circuit Court of Appeals has ruled, vacating the man’s conviction.

Maryland’s Anthony Palomino-Coronado, who was 19 at the time he was charged, was sentenced in May to the maximum 30 years in prison for having sex with his 7-year-old neighbor and taking at least one picture of the act.

On Nov. 5, the 4th Circuit reversed the district court’s decision and vacated Palomino-Coronado’s conviction, finding that while the defendant may have intentionally snapped the photo, the government fell short of proving that he engaged in the sex act for the purpose of producing child pornography.

“Instead, the government appears to conflate the voluntary act of taking the picture with the specific intent required under the statute,” Judge Roger Gregory wrote for the unanimous panel.

Palomino-Coronado was indicted on this single charge by the federal government — knowingly employing, using, persuading, inducing, enticing, and coercing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction.

A footnote in the court opinion indicates he may be facing state charges; a  representative of the Prince George’s County State’s Attorney Office was unable to verify whether state charges are pending.

“The evidence proved that the defendant raped the child and took a photograph,” U.S. Attorney for the District of Maryland Rod Rosenstein wrote in an email. “The rape is not a federal crime. We will refer the case to state prosecutors and hope they will take appropriate action.”

Just after 2 a.m. on May 3, 2012, according to court documents, police responded to a missing child report to find the victim, identified as “B.H.,” standing next to a fence that separated her house from the neighbor’s.

According to officers, the child said she had been next-door hanging out with a friend, something she had done on numerous occasions.

A sexual assault examination, however, yielded evidence suggesting that more was going on.

A detective testified that during an unrecorded interview, B.H. admitted that she and “Anthony” had sex.

During the recorded portion, however, the child denied that she and Palomino-Coronado ever had sexual relations.

Then, according to the court opinion, B.H. told an FBI child forensic interview specialist that sex acts had occurred between her and Palomino-Coronado, and she testified to the same during trial.

Authorities searched Palomino-Coronado’s cellphone and uncovered several photos of a fully dressed B.H.

But one image, which had been deleted, depicted a man and a child — identified by B.H. as herself and Palomino-Coronado — having sex.

On May 12, 2014, a jury convicted Palomino-Coronado of the sex crime.

On appeal, Palomino-Coronado argued that the government failed to prove one of the elements of the applicable statute: that he acted for the purpose of producing a visual depiction.

Clarifying what was required of the prosecution here, Gregory wrote: “[A] defendant must engage in the sexual activity with the specific intent to produce a visual depiction; it is not sufficient simply to prove that the defendant purposefully took a picture. Nonetheless, courts do not require that a defendant be single-minded in his purpose to support a conviction.”

This was the first time, Gregory noted, that the court had considered a challenge to the sufficiency of evidence in a conviction under this statute.

While courts have sometimes had direct evidence on which to rely, Gregory wrote, such as testimony regarding concealed cameras or the sheer number of sexually explicit photos taken, more common is circumstantial evidence to prove intent.

The court has also considered, as in United States v. Lebowitz, evidence of “purposeful conduct.” In Lebowitz, the defendant carried a camera and tripod with him though the minor’s bedroom window and set the equipment up in her bedroom.

The opinion cited another case in which the defendant took the minor to a hotel room and went back to his car to retrieve a camera bag, which also contained “sexual aids.”

Here, the court found no direct evidence or incriminating statements and no testimony that Palomino-Coronado gave any instruction or direction to B.H. that would indicate his intention to produce a picture.

The government argued that the frequency with which Palomino-Coronado used his cellphone to take pictures showed that he “regularly and intentionally” used the camera feature to capture different aspects of his life and that the one photo in question, focused on his genital area, proves that it was not unintentionally captured.

The court was not swayed, noting the prosecutors’ failure to explain how their statements proved that the sexual activity was initiated for the purpose of producing the picture.

The court was also found it “significant here that only one photograph was taken and subsequently deleted.”

Although it agreed with the government generally that there is no minimum number needed, Gregory wrote: “In this instance, where Palomino-Coronado engaged in sexual activity with B.H. over many months, the fact that only one image was produced militates against finding that his intent in doing so was to take a picture.

“The single photo is not evidence that Palomino-Coronado engaged in sexual activity with B.H. to take a picture, only that he engaged in sexual activity with B.H. and took a picture.”

The court also found unpersuasive the government’s argument that Palomino-Coronado demonstrated intent by taking his phone to the basement.

Taking a cellphone to a different room in one’s home is significantly different than carrying a camera and tripod to a sexual encounter, the court held.

“Cell phones are now ubiquitous, especially for teenagers, and almost always within reach,” Gregory wrote.

“We do not conclude that use of a cell phone will never be evidence of purpose under [the statute]; instead, we simply hold that Palomino-Coronado’s use of his cell phone in this instance does not meet the specific intent requirement under the statute,” he wrote.

A voicemail left with Palomino-Coronado’s attorney, Joanna Silver of Maryland’s Office of the Federal Public Defender was not returned.