Filed: Oct. 19, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4209 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES W. GEORGE, a/k/a "jimingoshen", a/k/a "me george", Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:08-cr-00024-JDB-DJJ-1) Submitted: October 15, 2009 Decided: October 19, 2009 Before SHEDD, DUNCAN, and AGEE, Circuit Judges. Affirmed by unp
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4209 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES W. GEORGE, a/k/a "jimingoshen", a/k/a "me george", Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:08-cr-00024-JDB-DJJ-1) Submitted: October 15, 2009 Decided: October 19, 2009 Before SHEDD, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpu..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4209
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES W. GEORGE, a/k/a "jimingoshen", a/k/a "me george",
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:08-cr-00024-JDB-DJJ-1)
Submitted: October 15, 2009 Decided: October 19, 2009
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant. Sharon L. Potter, United States
Attorney, David J. Perri, John C. Parr, Assistant United States
Attorneys, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James W. George appeals his conviction by a jury and
sentence on six counts of attempted transfer of obscenity to a
minor, in violation of 18 U.S.C. § 1470 (2006). The district
court sentenced George to thirty months’ imprisonment on each
count, to be served concurrently, and to three years of
supervised release. George appeals, challenging the district
court’s providing the jury with a willful blindness instruction
and its enhancement of George’s sentence for obstruction of
justice pursuant to U.S. Sentencing Guidelines Manual § 3C1.1
(2008). Finding no reversible error, we affirm.
The trial testimony demonstrated that Deputy Wesley
Frame, working in an undercover capacity for the Hampshire
County Sheriff’s Office, assumed a fictitious online persona as
a fourteen year-old deaf girl named Melissa Martin for the
purpose of conducting online investigations into Internet-
related child exploitation activities. George contacted Melissa
via the internet and, in an instant message chat conversation
that lasted over an hour, and after she stated that she was
fourteen years old, George turned on a web cam so that Melissa
could see him masturbating while he looked at her computer
profile picture. George voluntarily transmitted similar live
web-cam footage to Melissa on several other occasions and after
she again told him she was a minor.
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George testified at trial, denying any awareness that
the person with whom he was corresponding was under the age of
sixteen, and claiming he believed the person to be a gay man or
an older woman engaged in fantasy role-play. The key issue at
trial was whether George knew he was corresponding with a minor.
We review the decision of the district court to
provide a particular jury charge for abuse of discretion.
United States v. Abbas, 74 F.3d 506, 513 (4th Cir. 1996). The
willful blindness instruction allows the jury to impute the
element of knowledge of an illegal activity to the defendant,
United States v. Schnabel,
939 F.2d 197, 203 (4th Cir. 1991),
and is appropriate when the defendant claims lack of guilty
knowledge in the face of evidence supporting an inference of
deliberate ignorance.
Abbas, 74 F.3d at 513.
Here, Melissa told George several times that she was
fourteen years old and made references to age-appropriate life
circumstances during the chat conversations. George expressed
concern for and awareness of the legal risks involved in the
conduct about which they chatted, including concern about
someone finding evidence of their relationship on Melissa’s
computer and statements that they would have to wait until
Melissa graduated high school for them to engage in direct
sexual activity. On these facts, we find no abuse of discretion
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in the district court’s determination of the propriety of the
willful blindness instruction. *
Nor do we find any error in the district court’s
enhancement of George’s sentence for obstruction of justice
given his denial, in the face of overwhelming evidence to the
contrary, that he knew Melissa was under sixteen years of age.
George’s testimony was material, and fundamentally and
irreconcilably at odds with both the verdict of the jury, which
found him to lack credibility in his protestations of innocence,
and with the wealth of evidence introduced at trial. The
district court’s conclusion that George perjured himself at
trial, thus supporting the enhancement, was proper. See, e.g.,
United States v. Boesen, 541 F.3d 838, 852 (8th Cir. 2008)
(upholding enhancement based on fundamental inconsistency
between defendant’s testimony and the jury verdict and
evidence); United States v. Garcia,
994 F.2d 1499, 1509 (10th
Cir. 1993) (same).
Accordingly, we affirm George’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
*
George’s assertion on appeal that the instruction is not
appropriate where there is evidence that the defendant had
actual knowledge of the age of the person to whom he sent the
obscenity is without merit. See Abbas, 74 F.3d at 513;
Schnabel, 939 F.2d at 203-04.
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before the court and argument would not aid the decisional
process.
AFFIRMED
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