Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:12-cr-00130-1--Robert Holmes Bell, District Judge.
Dennis C. Kolenda, DICKINSON WRIGHT PLLC, Grand Rapids, Michigan, Charles E. Chamberlain, WILLEY & CHAMBERLAIN, Grand Rapids, Michigan, for Appellant.
Daniel Y. Mekaru, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.
Before: DAUGHTREY, McKEAGUE, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge.
Following a bench trial, the district court found Wright guilty on five counts of sexual exploitation of a minor, 18 U.S.C. § 2251(a), (e), and one count each of transporting images of a minor engaged in sexually explicit conduct, 18 U.S.C. § 2252(a)(1) & (b)(1) (count 6), and possession of child pornography, 18 U.S.C. § 2252A (count 7). Wright appeals his convictions on counts 1 through 6. We AFFIRM.
The sole witnesses were two agents of the Department of Homeland Security, Investigations unit (HSI). Special Agent Michael George testified that after receiving a lead from a Texas child-pornography investigation, he and forensic examiner
Special Agent Timothy Kruithoff interviewed Wright at his residence outside Bangor, Michigan, on March 24, 2011. Wright consented to the interview and explained that when J.S. was sixteen Wright had hired him to mow the lawn and perform other chores at Wright's home and at the equestrian center Wright owns and operates across the street from his home. Wright admitted that he began a sexual relationship with J.S., and photographed J.S. in the nude when J.S. was sixteen. This sexual relationship was ongoing when Agents George and Kruithoff interviewed Wright. Wright was sixty-two and J.S. was eighteen at the time of the interview.
Wright consented to the search and seizure of equipment from his home office, including an Apple desktop computer, a laptop computer, three thumb drives, a Fuji camera, a digital video camera, external hard drives, and two camera storage devices. Wright explained that the nude images of him and J.S. were on his desktop and thumb drives, and the nude images of J.S. when he was sixteen were located on a thumb drive.
HSI forensic computer analyst Special Agent Blair Babcock testified at trial that he examined the seized equipment and that the only nude photographs found of J.S. were taken in Florida on March 4, 6, and 9, 2009. Wright was also nude in a number of those photographs. Email messages and credit-card statements introduced at trial confirmed that Wright and J.S. stayed at a Florida hotel from March 4 to 10, 2009. Wright stated to the Probation Officer who prepared the PSR that because the age of consent in Michigan is sixteen, Wright did not believe that photographing J.S. in the nude was illegal. Twenty-one of these Florida photographs are the subject of counts 1 through 3 (sexual exploitation of minor) and count 6 (transportation of images).
Also, a video camera that Wright installed in his office at the equestrian center recorded J.S. masturbating in July and August 2009, when J.S. was seventeen. Two such video recordings formed the bases of the fourth and fifth counts of sexual exploitation of a minor.
At the close of the prosecution's proofs, Wright moved for acquittal on counts 1 through 6 under Fed. R. Crim P. 29. The district court denied the motion and the defense rested without presenting a case. The district court sentenced Wright to concurrent fifteen-year terms on each of counts 1 through 6, and a concurrent ten-year term on count 7. PID 529. Wright appeals his convictions on counts 1 through 6.
II. Insufficiency Claim (counts 1 through 5)
Wright first argues that there was insufficient evidence to convict him of sexual exploitation of a minor under 18 U.S.C. § 2251(a) because the Government failed to prove that he " used" J.S. for the purpose of " producing" a visual depiction of sexually explicit conduct. Wright maintains that the district court misapprehended
the " use" element of § 2251(a), and that this court should adopt the Ninth Circuit's interpretation of " use." Appellant Br. at 12.
We review de novo Wright's challenges to the sufficiency of the evidence, and " [t]o the extent that the question turns on statutory interpretation, rather than on the sufficiency of the evidence, we review the issue de novo." United States v. Choice, 201 F.3d 837, 840 (6th Cir. 2000). " A defendant challenging the sufficiency of the evidence bears a very heavy burden." United States v. Prince, 214 F.3d 740, 746 (6th Cir. 2000) (citation omitted). The question is " whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We will reverse a conviction " only if, ...