By George Kennedy
Today, in the criminal case of United States v. Palomino-Coronado, the Fourth Circuit vacated the conviction of Defendant under 18 U.S.C. § 2251(a). Holding that there was insufficient evidence to show that Defendant had engaged in sexual activity with a minor for the purpose of producing a visual depiction, the Fourth Circuit reversed the district court’s ruling and vacated Defendant’s conviction.
Events Leading up to Defendant’s Conviction
Defendant Anthony Palomino-Coronado was convicted under 18 U.S.C. § 2251(a) based upon the testimony of a seven-year-old child, B.H., who claimed that Defendant had sexual intercourse with her. The events leading up to the conviction began on May 3, 2012 in Prince George’s County, Maryland. On that day, police officers were called to a home that had reported B.H. missing. The officers found B.H. at Defendant’s home, and then interviewed B.H. on suspicion that she had been sexually assaulted.
After interviewing B.H., police officers took her to the hospital for a sexual assault forensic exam. The examining nurse found physical evidence that suggested that she had engaged in sexual intercourse. Furthermore, the nurse interviewed B.H., and B.H. told the nurse that she and Defendant had engaged in sexual intercourse. Following the exam, detectives also interviewed B.H., and she again told them that she and Defendant had sex, and also that Defendant had taken pictures of her during the act.
Detectives filed a search warrant and recovered Defendant’s phone. They found several images of B.H. stored on the phone, and one picture of a man penetrating a child that had recently been deleted. During a later interview, B.H. told questioning detectives that the man and child in the picture were indeed her and Defendant.
Defendant’s Conviction Under 18 U.S.C. § 2251(a)
At trial, the jury found Defendant guilty 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). The court sentenced Defendant to thirty years imprisonment.
Defendant’s Sufficiency of the Evidence Challenge on Appeal
Defendant appealed his conviction based on a sufficiency of the evidence challenge. Defendant argued that there was insufficient evidence to convict him and that the district court improperly denied his judgment for acquittal under Federal Rule of Criminal Procedure 29. The Fourth Circuit agreed with Defendant and vacated his conviction.
In so holding, the Fourth Circuit focused on the elements required for conviction under 18 U.S.C. § 2251(a), specifically the “purpose” element. To be convicted under the statute, a defendant must coerce a minor to engage in sexually explicit conduct “for the purpose of producing any visual depiction of such conduct.” As the Fourth Circuit explained, the statute contains a specific intent element: “the government was required to prove that production of a visual depiction was a purpose of engaging in the sexually explicit conduct.” This specific intent may be proved either by direct evidence such as express statements to the fact or by circumstantial evidence. For example, a defendant providing a minor with “specific instructions” regarding her position relative to the camera may be sufficient proof of an intent to produce a visual depiction of the sexual activity. Alternatively, the presence of a large number of sexually explicit recordings can serve as proof that the defendant engaged in sexual activity for the purpose of producing a visual depiction of the sexual conduct.
In this case, however, the Fourth Circuit held that there was neither direct nor circumstantial evidence to support that Defendant engaged in sexual activity with B.H. for the purpose of producing a visual depiction of that activity. The fact that Defendant made no statements evincing an intent to make a visual depiction and the fact that Defendant only had one sexually explicit picture of B.H. on his phone were cited as support for the Fourth Circuit’s holding.
Reversed and Vacated
Accordingly, the Fourth Circuit reversed the judgment of the district court and vacated the conviction of Defendant, holding that there existed insufficient evidence at trial to support a conviction under 18 U.S.C. § 2251(a).
