THOMPSON, Circuit Judge.
On May 10, 2012, a jury in the District of Maine convicted Royce Breton of producing, possessing, and distributing child pornography. The district judge subsequently sentenced Breton to 340 months of imprisonment, followed by fifteen years of supervised release. Breton now appeals, challenging the admission of certain evidence, the sufficiency of the evidence as to all charges, and the calculation of his sentence. Finding none of his claims persuasive, we affirm both his conviction and his sentence.
Because Breton contests the sufficiency of the evidence, we present the facts in the light most favorable to the verdict. See United States v. Stefanik, 674 F.3d 71, 73 (1st Cir. 2012).
The unusual trail leading up to this case began on August 16, 2010, when Lewiston Police Officer David Brule, State Police
The officers arrived at about 1:00 p.m., while Paradis was at work and Breton, who worked the evening shift, was home alone. When Breton answered the door, the officers asked if they could come in to speak with him about the computer hacking crime. Before they entered, Trooper Armstrong saw a sizable dog in the house and asked Breton to secure it in another room. Breton complied, but he also took advantage of the opportunity to hide the Sony laptop computer (the "laptop") that he and Paradis shared in the basement.
A few moments later, Breton let the officers in and responded courteously to their questions. He led them upstairs to his custom-built desktop computer (the "desktop") and an old, non-functioning Gateway laptop computer (the "Gateway"). When asked whether he had used wiping software on those computers, Breton replied he had not and permitted the officers to take them for further inspection.
When Paradis arrived home that evening, Breton told her about the officers' visit and their computer hacking investigation. He said the police had taken the desktop and the Gateway, but they had not taken the laptop because he had put it in the basement. Breton explained to her that "he didn't think [the officers] needed to have [the laptop]," because "[h]e told them everything that they needed to know."
As a result of this conversation, Paradis decided to take the couple's daughter and move in with her parents. She also took the laptop, telling Breton she was worried the police would come back to their house and blame her for concealing it. On August 26, 2010, ten days after the officers' visit and unbeknownst to Breton, Paradis contacted the police and arranged for Officer Brule to retrieve the laptop at her workplace.
About a week later, Breton asked Paradis about the laptop. When she said she had given it to the police, Breton became very distraught, saying she had "screwed everything up" and "he was going to go to jail and lose his job." Later, in a heated text message exchange, Breton again expressed anger at Paradis for turning in the laptop and told her he "should have sh[o]t [her] instead."
On September 8, 2010, Breton called Officer Brule to ask when his computers would be returned. They agreed to meet and discuss the matter on September 20.
In the meantime, Officer Brule examined the laptop and, in doing so, uncovered sexually explicit images of children in a
At their September 20 meeting, when Officer Brule asked Breton why he had not turned over the laptop, Breton answered that it belonged to his wife and contained intimate images of the couple that he did not want others to see. He admitted to installing the wiping software on the laptop but claimed he used it only to remove the private images of him and his wife. He conceded that this might make it look like he was destroying evidence, but he insisted that he knew nothing about the Shadowwind345 account and said he was "completely flabbergasted" when Officer Brule told him about the child pornography images found on the computer.
Yahoo later informed Officer Brule that the Shadowwind345 account was created on June 23, 2001 and was registered to an obviously-fictional "Mr. Nonesuch-ever-was" in Cleveland, Ohio. Although Breton never admitted to creating the account, at trial Breton acknowledged that he often used the combination "345" in his usernames and passwords. For example, his e-mail address was Breton345@metrocast.net. He also conceded at trial that his dad used to have a cat named Shadow. The Shadowwind345 account was deactivated on September 18, 2010—two days before Breton's appointment with Officer Brule— from an IP address registered to MetroCast (Breton's internet provider) at Breton's home, and associated with Breton's e-mail address.
Officer Brule and Secret Service Special Agent Matt Fasulo, a computer forensics expert attached to the Maine State Police Computer Crimes Unit, recovered roughly three hundred images of child pornography from the laptop in hidden folders related to the Yahoo Messenger program.
Of the unidentified images, three were singled out as photographs of a young female child, dubbed "Minor A." Each depicts a close-up of Minor A's genitals. In the photographs, Minor A has a crease in her right thigh, is lying on a patterned quilt, and is wearing a onesie. In one image, an adult hand displays Minor A's vagina.
At some point, Sanford Police Detective Barbara Gagne took over the case from Officer Brule and arranged to meet with Paradis to discuss some of the images found on the computer. She showed Paradis the Minor A photographs and Paradis identified Minor A as her daughter. Paradis said her daughter was "a very chubby baby" who had a visible crease in her right thigh, just like Minor A. She recognized the patterned quilt in the photographs as the quilt her aunt had made for her baby
Additionally, Special Agent Fasulo ran tests to determine how the Yahoo Messenger folders containing the child pornographic images were created and whether the images were exchanged.
Special Agent Fasulo's analysis indicated that at least one of the three Minor A images was sent from the laptop using Yahoo Messenger on April 27, 2009 at 11:42 a.m.; the other two images were either sent or received at roughly the same time.
In addition to the images, Special Agent Fasulo discovered registry files on the laptop with names he had encountered in other child pornography investigations, including: "Pthc," meaning "preteen hardcore;" "Lolita," meaning an underage female; and "girl-in-tent-11-YO," meaning "11-years-old."
Special Agent Fasulo also came across a program called GigaTribe, which, like Yahoo Messenger, allows users to upload images or files to share on the internet. In a memory folder created by the operating system that stores information in the event of a crash, Special Agent Fasulo found GigaTribe folders associated with the usernames "Royce-$ $-2AOB" and "Shadowwind345B." In those folders, he identified files with names like "ptsc," meaning "preteen softcore," and "kids-teens-women-porno-lolitas-preteens-real-key-movs-r@y-goldhussyfans-underage-girls-children-pedophilia-pthc."
No images or files containing child pornography were recovered from the desktop. However, Special Agent Fasulo's examination of the desktop's three hard drives revealed considerable past interactions with two web-sharing forums: imgsrc.ru ("Image Source Russia"), a website that allows users to upload images from servers in Russia into albums to share publicly or with password protection; and XNews, a newsgroup website where readers can comment on particular topics. There was evidence of past searches on Image Source Russia for such phrases as "12YO," "daughter," "naked," "girl," "sex," "14," and "14 plus girl," as well as evidence of webpages visited containing albums with titles and keywords like "love Lolita," "children," "young girls," "14YO topless," and "young nude preteen girls." And although the files themselves were missing, there was evidence of downloads from XNews including, "Pthc 11 YR son eat mom" and "O-R-G-A-S-I-S-M.mpg."
Special Agent Fasulo subsequently accessed the Image Source Russia website and found a user page registered to the user "Shadowwind345" at the e-mail address shadowwind345@yahoo.com. There were no images on Shadowwind345's user page. However, there was evidence of activity by this user. On March 6, 2009, Shadowwind345 posted a comment on a page by the username "Hershey" entitled "Young Bride," saying "I'd like to see your daughter pics. Email me at Shadowwind 345@yahoo.com to trade." On May 24, 2009, Shadowwind345 commented on an album by the username "Low Jack" entitled "my dau," saying "Have more? Love to see more, Shadowwind345@yahoo.com if you want my passes or want to see my private daughter stuff."
Based on this investigation, Breton was charged with three counts involving child pornography: (1) using a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct, in violation of 18 U.S.C. § 2251(a); (2) knowingly possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B); and (3) knowingly distributing child pornography, in violation of 18 U.S.C. § 2252A(a)(2).
Before trial, the government moved in limine to admit Paradis's testimony regarding, among other things, Breton's aforementioned statements and text messages. Breton opposed, claiming they were covered by the marital communications privilege. Breton also counter-moved to exclude evidence of file and chat room names that were suggestive of child pornography where no images were recovered, claiming the names were irrelevant, unfairly prejudicial, and unduly confusing.
After a motions hearing, the district judge granted the government's request to admit Paradis's testimony, applying an exception to the marital communications privilege for statements regarding an offense against a child of either spouse. The
Breton's three-day jury trial began on May 8, 2012. At the close of the government's case and again at the end of trial, Breton moved for judgment of acquittal. Both motions were denied. On May 10, 2012, the jury convicted Breton on all three counts.
At Breton's sentencing hearing on October 12, 2012, the district judge sentenced Breton to concurrent imprisonment terms of 340 months for count one (production), 120 months for count two (possession), and 240 months for count three (distribution), with an additional fifteen years of supervised release.
Breton raises four issues on appeal: (1) error in admitting his former wife's testimony about statements that he says were protected by the marital communications privilege, (2) error in admitting file and chat room names that were suggestive of child pornography where no images were recovered, (3) insufficiency of the evidence as to all three charges, and (4) error in calculating his sentence under the United States Sentencing Guidelines (the "Guidelines"). We address each of Breton's arguments in turn but find none convincing.
Breton invokes the marital communications privilege to challenge the district judge's admission of Paradis's testimony regarding two groups of statements Breton made to Paradis after he learned she had conveyed the laptop to the police. First, Breton told Paradis that she had "screwed everything up" and "he was going to go to jail and lose his job." Second, Breton text-messaged Paradis that he "should have sh[o]t her instead." Breton argues that both sets of statements are privileged because he made them to Paradis in confidence during their marriage. He says the judge erred by recognizing an exception to the marital communications privilege for offenses against a spouse's child and by applying such an exception to these statements, which he says were not related to a crime against his and Paradis's child.
We review the admission of evidence over a claim of privilege for abuse of discretion. In re Grand Jury Subpoena (Mr. S.), 662 F.3d 65, 69 (1st Cir. 2011). Where relevant to a determination of privilege, we review rulings on legal questions de novo and findings of fact for clear error. Id.
In addressing Breton's first claim of error, we note in general that the party asserting a privilege "bears the burden of showing that the privilege applies." See Vicor Corp. v. Vigilant Ins. Co., 674 F.3d 1, 17 (1st Cir. 2012). If the privilege is established, the burden shifts to the opposing party to show that an exception defeats the privilege. See id.
In a federal criminal case such as this, claims of privilege are governed by the common law as interpreted by the courts in light of their reason and experience. United States v. Rakes, 136 F.3d 1, 3 (1st Cir. 1998) (citing Fed.R.Evid. 501). The common law recognizes two related but distinct marital privileges: (1) the spousal testimony privilege, which allows one spouse to refuse to testify adversely
The marital communications privilege exists to promote marital harmony and stability by "ensur[ing] that spouses ... feel free to communicate their deepest feelings to each other without fear of eventual exposure in a court of law." United States v. Brock, 724 F.3d 817, 820-21 (7th Cir. 2013) (citation omitted) (internal quotation marks omitted); United States v. Banks, 556 F.3d 967, 974 (9th Cir. 2009). Indeed, the protection of marital confidences is "regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails." Wolfle v. United States, 291 U.S. 7, 14, 54 S.Ct. 279, 78 L.Ed. 617 (1934).
However, this privilege, like others, "is not limitless, and courts must take care to apply it only to the extent necessary to achieve its underlying goals." See In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003) (discussing attorney-client privilege). Accordingly, courts have long recognized an exception to the privilege when one spouse commits an offense against the other, thereby harming the marital relationship and thwarting the privilege's purpose. Trammel v. United States, 445 U.S. 40, 46 n. 7, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (saying the exception applies to spousal testimony privilege and marital communications privilege); see 1 McCormick On Evid. § 84 (7th ed.) (same); see also Wyatt v. United States, 362 U.S. 525, 529, 80 S.Ct. 901, 4 L.Ed.2d 931 (1960) (applying exception to spousal testimony privilege).
Two of our sister circuits have expanded this "offense against spouse" exception to include an offense against a child of either spouse. United States v. White, 974 F.2d 1135, 1138 (9th Cir. 1992) (applying exception to marital communications privilege); United States v. Allery, 526 F.2d 1362, 1367 (8th Cir. 1975) (applying exception to spousal testimony privilege); see also United States v. Cameron, 556 F.2d 752, 755 (5th Cir. 1977) (acknowledging exception to spousal testimony privilege). Another has gone further, finding the exception covers offenses against a child-relative visiting in the home. United States v. Bahe, 128 F.3d 1440, 1446 (10th Cir. 1997).
In United States v. Allery, 526 F.2d 1362, 1366-67 (8th Cir. 1975), the Eighth Circuit cogently explained why the "offense
First, a crime against a spouse's child, like a crime against a spouse, profanes the deep bond of trust and love between marital partners and disrupts family harmony. Id. at 1366. Such an offense is irreconcilable with the primary purposes of the marital communications privilege: to promote marital unity and stability. White, 974 F.2d at 1138.
Second, there is frequently greater-than-usual need for parental testimony in prosecutions for crimes against children. Allery, 526 F.2d at 1366. Tragically and perversely, child abuse occurs most often in the home at the hands of a parent or parent-substitute. Id.; Bahe, 128 F.3d at 1446. Testimony regarding confidential marital communications may constitute critical evidence in such cases. See Bahe, 128 F.3d at 1446.
Third, like all privileges, the marital privileges hamper the truth-seeking process and must be interpreted narrowly. Trammel, 445 U.S. at 50, 100 S.Ct. 906 (quoting Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (Frankfurter, J. dissenting)); see Allery, 526 F.2d at 1366 (quoting Hawkins v. United States, 358 U.S. 74, 81, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958) (Stewart, J. concurring)).
Finally, there is overwhelming state legislative and judicial authority for the proposition that a crime against a spouse's child renders the marital communications privilege inapplicable. Allery, 526 F.2d at 1366-67; see, e.g., Kan. Stat. Ann. § 60-428(b)(3); Miss. R. Evid. 504(d); Utah R. Evid. 502(e)(3); Munson v. State, 331 Ark. 41, 959 S.W.2d 391, 392 (1998); State v. Michels, 141 Wis.2d 81, 414 N.W.2d 311, 315-16 (Wis.Ct.App. 1987).
We further hold that the district judge did not abuse his discretion by applying this exception to the statements at issue here. Breton sought to exclude Paradis's testimony about what he said to her after she turned the laptop over to police, including that she had "screwed everything up," "he was going to go to jail and lose his job," and he "should have sh[o]t [her]." Breton says that even if the district judge appropriately adopted an exception to the marital communications privilege for crimes committed against a spouse's child, the judge should not have permitted Paradis to testify about these statements because they were not related to a crime against his and Paradis's child.
We disagree. Here, all three crimes charged—production, possession, and distribution—covered crimes against Minor A, whom Paradis identified as her daughter. As the district judge determined, Breton's statements about losing his job, going to jail, and shooting Paradis are reasonably interpreted as relating to Breton's worries about the impending discovery of his crimes against his own child. Whether the jury should have been instructed to disregard this evidence in connection with the charged crimes against other children (on the theory that the marital communications privilege applies in that context) is a question not before us as no such instruction was requested. See Fed.R.Evid. 105 (stating that when evidence is admissible only for a limited purpose, "the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly") (emphasis added); 21A Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure: Evidence § 5065, at 329-30 (2d ed. 2005) ("[W]ithout a request the trial court does not err in not giving [a limiting] instruction."). Consequently, we cannot find that the district judge abused his discretion by concluding that the exception to the marital communications privilege for offenses committed against the child of either spouse applied here. We find that the district judge did not err by admitting Paradis's testimony about these statements.
Breton next challenges the admission of file and chat room names that allude to child pornography where no actual images were recovered. He contends that this
Breton objected to the admission of this evidence on these grounds before and during trial, thereby preserving these issues for appeal. We review his preserved challenges to the admission of this evidence for abuse of discretion. United States v. Brown, 669 F.3d 10, 21 (1st Cir. 2012).
Breton first argues that file and chat room names suggestive of child pornography were not relevant to the charged crimes where no corresponding images were recovered. As we have said before, "[a] relevancy-based argument is usually a tough sell." Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 76 (1st Cir. 2010). Evidence Rule 401 defines relevant evidence expansively as "`evidence having any tendency to make the existence of any fact that is of consequence' more or less probable." Id. (quoting Fed.R.Evid. 401). This is not a high bar, and we give a district judge "considerable leeway in deciding whether the contested evidence satisfies this ... standard." Id.
To prove that a defendant knowingly possessed child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) or knowingly distributed child pornography in violation of 18 U.S.C. § 2252A(a)(2) requires a showing of scienter. Courts, including this one, consider file, chat room, and website names suggestive of child pornography relevant to proving a defendant's knowledge of such materials. See, e.g., United States v. Rogers, 714 F.3d 82, 86-87 (1st Cir. 2013) (finding that web browser history of "numerous visits to websites related to, or with names indicative of, child pornography" helped show defendant knowingly possessed child pornography); United States v. Pires, 642 F.3d 1, 9 (1st Cir. 2011) ("[A] defendant's use of search terms associated with child pornography can support a finding that he knew that the images retrieved contained child pornography."); United States v. Fabiano, 169 F.3d 1299, 1306 (10th Cir. 1999) (explaining that defendant's participation in "preteen" chat room for several months prior to exchange of images helped show defendant was aware of nature of images before he received them). Furthermore, evidence that a person deliberately deleted or attempted to delete files containing child pornography tends to show that the person was aware of the files and their illicit nature. See Rogers, 714 F.3d at 87.
Here, Breton opposes the admission of file and chat room names suggestive of child pornography where no actual images were found on the computer. Specifically, he challenges the introduction of registry file names like "pthc" ("preteen hardcore") and "girl-in-tent-11-YO," ("11-year-old"), which were found on the laptop without corresponding image files. He also protests the admission of GigaTribe file names like "kids-teens-women-porno-lolitas-preteensreal-key-movs-r@y-gold-hussy fans-underage-girls-children-pedophilia-pthc" (naming known series of child pornography), which were likewise found on the laptop without image files. He further objects to the admission of Internet Relay Chat log evidence of chat room names like "young-girl-sex" and "dad-and-daughter-sex," which were also found on the laptop and not associated with image files.
The district judge admitted this evidence over Breton's objections because he believed the file and chat room names were relevant to "the [g]overnment's effort to establish the scienter requirement and to show what [Breton] was doing ... on his computers, even though there may not have been images in those particular files."
We agree. The presence of files with names indicative of child pornography—even absent further proof of what, if anything, those files contained—tends to make it more probable that Breton knowingly was involved with child pornography. See, e.g., Rogers, 714 F.3d at 86-87. This is particularly true where actual images of child pornography were found elsewhere on the same computer. Moreover, prosecutors could argue that the fact that the hidden files remained on the laptop without their visible counterparts after Breton both concealed the laptop from police and selectively wiped its hard drive suggests Breton deliberately attempted to delete the files in toto and was aware of their content. See id. at 87. This evidence easily satisfies the low bar of relevancy set out in Rule 401.
Breton next argues that evidence of file and chat room names implying child pornography where no actual images were recovered should have been excluded as unfairly prejudicial and confusing. Though possessing Rule 401 relevancy, evidence may nevertheless be excluded under Evidence Rule 403 "`if its probative value is substantially outweighed by the danger of unfair prejudice [or] confusion of the issues.'" United States v. Gentles, 619 F.3d 75, 87 n. 4 (1st Cir. 2010) (quoting Fed.R.Evid. 403). However, this rule protects defendants only against evidence that would produce unfair prejudice, as "`[b]y design, all evidence is meant to be prejudicial.'" United States v. Varoudakis, 233 F.3d 113, 122 (1st Cir. 2000) (quoting United States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989)). Evidence produces unfair prejudice when it "invites the jury to render a verdict on an improper emotional basis." Id.
We give great deference to a district judge's balancing of probative value versus unfair prejudice. Gentles, 619 F.3d at 87. This is true even when a judge does not expressly explain the Rule 403 balancing process on the record. See, e.g., United States v. Smith, 292 F.3d 90, 98 (1st Cir. 2002) (determining that absence of findings on record does not preclude meaningful appellate review); United States v. Santagata, 924 F.2d 391, 394 (1st Cir. 1991) (quoting United States v. De La Cruz, 902 F.2d 121, 123 (1st Cir. 1990)) ("`[O]n-the-record findings as to the probative value/prejudicial effect balance' ... are not always necessary."); United States v. Foley, 871 F.2d 235, 238 (1st Cir. 1989) (finding no abuse of discretion in exclusion of evidence despite absence of express findings). "`[O]nly rarely—and in extraordinarily compelling circumstances— will we, from the vista of a cold appellate record, reverse a district [judge's] on-the-spot judgment concerning the relative weighing of probative value and unfair effect.'" Gentles, 619 F.3d at 87 (quoting United States v. Li, 206 F.3d 78, 84-85 (1st Cir. 2000)).
Here, Breton objects to the admission of the file and chat room names, even if relevant, on the grounds of unfair prejudice and confusion. Because the district judge did not refer directly to Rule 403 balancing on the record for this issue, Breton posits that the judge either failed to conduct the requisite analysis or reached an incorrect result. He says the probative value of the file and chat room names was substantially outweighed by the danger of unfair prejudice and confusion because "it could not be determined whether there
We disagree. Preliminarily, we note that the absence of an express Rule 403 finding here on this particular piece of disputed evidence does not mean the district judge failed to perform this analysis. See Smith, 292 F.3d at 98. The judge's handling of other disputed evidence demonstrates that he was aware of his responsibility to weigh the relevant factors and perform Rule 403 balancing prior to admitting such evidence. See De La Cruz, 902 F.2d at 123 n. 1. In fact, he performed precisely this analysis on the record with respect to evidence of the previous investigation of Breton for an unrelated computer crime and excluded that evidence as a result. We may therefore assume that the judge tacitly performed this same balancing with respect to the evidence of file and chat room names before concluding that its probative value won out over its potential for creating unfair prejudice or confusion.
On this record as a whole, we can meaningfully review the district judge's ruling, see Smith, 292 F.3d at 98, and we agree with his determination. File and chat room names incorporating lewd, obscene, or graphic terms suggestive of child pornography are, of course, prejudicial to Breton, but not unfairly so. They are not aimed to solicit an improper emotional response from the jury. In fact, compared with other evidence offered at Breton's trial—including actual images of child pornography and Paradis's testimony identifying Breton and their young daughter in some of those images—this evidence is rather mild. We trust the jury was able to distinguish between files with and without corresponding illicit images and to give each evidentiary submission the weight it deserved. Also, Breton had ample opportunity to minimize the risk of any confusion through cross-examination of Special Agent Fasulo, who testified about the file and chat room names at trial. When Breton's counsel asked Special Agent Fasulo whether he knew what was contained in those files, Special Agent Fasulo admitted that he did not know and that it was possible those files could have contained something other than child pornography.
Furthermore, we see no "extraordinarily compelling circumstances" here—and Breton offers none—that would warrant reversal of the district judge's firsthand weighing of the relative probative value and potential prejudicial or confusing effect of this evidence. In consequence, we find the district judge committed no abuse of discretion by admitting the file and chat room names into evidence.
Third, Breton challenges the sufficiency of the evidence as to all three counts of his conviction, claiming the government did not prove beyond a reasonable doubt that he produced, knowingly possessed, or knowingly distributed child pornography.
Because Breton moved for judgment of acquittal both at the close of the government's case and at the end of trial, we review his preserved sufficiency claims de novo. United States v. Howard, 687 F.3d 13, 19 (1st Cir. 2012). In doing so, we consider the evidence, both direct and circumstantial, in the light most favorable to the verdict. Id. We will reverse only if we find that "even after `crediting the government's witnesses and drawing all reasonable inferences in its favor,' no levelheaded jury could have found [Breton] guilty." United States v. Guerrier, 669 F.3d 1, 7 (1st Cir. 2011) (quoting United States v. Aranjo, 603 F.3d 112, 116 (1st Cir. 2010)). That Breton might develop "a plausible theory of innocence" will not help him:
Breton first says the government lacked sufficient evidence to prove he produced child pornography. 18 U.S.C. § 2251(a) criminalizes the use of a minor in any sexually explicit conduct for the purpose of producing a visual depiction of that conduct.
Breton claims the jury did not have sufficient evidence to conclude beyond a reasonable doubt that he produced these images. Specifically, he cites a lack of computer forensic evidence conclusively linking him to the Minor A images and says a "biased" Detective Gagne was "desperate" to connect him to the photographs even if the evidence did not point in his direction. He argues Detective Gagne "used" Paradis to try to establish that Minor A was their daughter, and says "[t]he issue becomes the influence a detective can have on the case if [she has] a scared and emotional mother, trying to protect her child, as the only witness to identify a child in an image of child pornography in which the child's face does not appear." His argument essentially boils down to misidentification due to slanted police work: Breton says he did not take the photographs and Minor A was not his daughter, but Detective Gagne was fixated on demonstrating the opposite.
However, viewing the evidence, as we must, in the light most favorable to the verdict, we cannot help but conclude that a sound-minded jury could find Breton produced the images in question. The government's evidence linking Breton and his daughter to the Minor A photographs was manifold. It included, among other things: Paradis's identification of Minor A as her and Breton's daughter based on Minor A's distinctive thigh indentation, much-worn onesie, and unique, homemade blanket; Paradis's identification of the adult finger in one photograph as Breton's based on its appearance and its short fingernail; computer forensic evidence showing that the Minor A images were distributed from the laptop shortly after an iPhone registered to Breton was connected to the laptop, at a time of day when Breton was not at work; and messages posted on a Russian image-sharing website by a user named Shadowwind345 (which matched the Yahoo Messenger username that the government argued belonged to Breton) asking other users to trade "daughter pics" and offering to share "my private daughter stuff."
Based on this evidence, a rational jury could conclude that Breton produced sexually
Breton next says the government failed to put forth sufficient evidence to prove that he knowingly possessed child pornography. 18 U.S.C. § 2252A(a)(5)(B) prohibits knowing possession of any material that contains an image of child pornography.
To satisfy the knowing possession requirement, the government must demonstrate that Breton possessed, and knew he possessed, child pornography. Rogers, 714 F.3d at 86. Such knowledge often is shown through circumstantial evidence. Pires, 642 F.3d at 8-9. For example, a defendant's history of visits to websites with a child pornography connection or use of search terms associated with child pornography can support a finding that the defendant knew the images he retrieved contained child pornography. See Rogers, 714 F.3d at 86; Pires, 642 F.3d at 9. Storage of child pornography images in a computer directory affiliated with internet-sharing can indicate those images were downloaded from or transmitted to those websites. Rogers, 714 F.3d at 86. And a defendant's intentional attempt to delete child pornography files, such as by placing them in a computer's recycle bin, can suggest he was aware of the files and their contents. Id. at 87.
Breton's argument that he could not have knowingly possessed the images of child pornography found in the laptop's hidden Yahoo Messenger folder therefore misses the point. Though the government concedes Breton may not have known that Yahoo Messenger had saved these particular image files in this particular location, the government introduced considerable other evidence that Breton knew the laptop contained images of child pornography. This evidence included a history of visits to websites and chat rooms connected with child pornography (such as Image Source Russia and Internet Relay Chat rooms named "young-girl-sex" and "dad-and-daughter-sex"); web searches for terms associated with child pornography (e.g., "12YO," "daughter," "naked," "girl," and "sex"); and the discovery of child pornography images in the hidden Yahoo Messenger file affiliated with internet-sharing. It also included evidence that Breton concealed the laptop and selectively wiped its data before Paradis handed it over to police, which could suggest Breton knew the laptop held child pornography and wanted
Last, Breton says the government did not provide sufficient evidence to prove he distributed child pornography. 18 U.S.C. § 2252A(a)(2) proscribes the knowing distribution of child pornography.
Breton argues that Special Agent Fasulo's testing was incomplete, inaccurate, and incapable of supporting a finding that he had distributed child pornography beyond a reasonable doubt. To support his claim, Breton says Special Agent Fasulo's methods were flawed because he did not use the precise versions of Microsoft Windows and Yahoo Messenger that were installed on the laptop when he simulated sending and receiving files. While the laptop ran Windows Vista Home, Special Agent Fasulo's test computers ran Windows Vista Business. Furthermore, because someone had uninstalled Yahoo Messenger and used wiping software on the laptop before the police retrieved it from Paradis, Special Agent Fasulo could only guess at which version of Yahoo Messenger had run on the laptop previously. In the end, Breton says, Special Agent Fasulo could not say with certainty whether the versions of those programs that were installed on the laptop would have behaved or interacted identically to the versions of those programs that Special Agent Fasulo actually tested.
However, this argument is unavailing. Breton's counsel rigorously cross-examined Special Agent Fasulo on this point and others relating to the testing process at trial. Breton's counsel asked specific questions about variations among different versions of Yahoo Messenger, including how they exchanged files and their interactions with Windows Vista. This questioning challenged the reliability of Special Agent Fasulo's testing process and methodology. It was for the jury to decide whether to trust Special Agent Fasulo's testimony and analysis over Breton's criticisms of his procedures. Crediting this evidence and drawing all reasonable inferences in the verdict's favor, we find that a jury could (and did) rationally find Breton guilty of distribution. Accordingly, the last of Breton's sufficiency challenges fails, and we find sufficient evidence supports the jury's conviction on all three counts.
Finally, Breton challenges his sentence. Breton claims the district judge erred by computing a Guidelines sentence of 720 months because none of the counts of his conviction permits the imposition of a life sentence and, according to Breton, the United States Sentencing Commission (the "Commission") "caps a life sentence at 470 months." We will add more detail to Breton's argument in a moment. At this point, though, we note that Breton in fact received a sentence of 340 months of imprisonment, plus fifteen years of supervised release.
We review a district judge's sentence for reasonableness, which is a two-part inquiry. Gentles, 619 F.3d at 88 (quoting United States v. Politano, 522 F.3d 69, 72 (1st Cir. 2008)). We begin by determining whether the district judge committed any procedural errors, such as, among other things, "`failing to calculate (or improperly calculating) the Guidelines range.'" Id. (quoting Politano, 522 F.3d at 72). Where the district judge has made no such error, we then consider "the substantive reasonableness of the sentence actually imposed and review [it] for abuse of discretion." Politano, 522 F.3d at 72.
Within this rubric, we afford the district judge wide discretion, as "after the [judge] has calculated the [Guidelines range], `sentencing becomes a judgment call.'" Id. at 73 (quoting United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008)). That we, "`sitting as a court of first instance, would have sentenced the defendant differently,'" is not a basis for reversal. United States v. Stone, 575 F.3d 83, 94 (1st Cir. 2009) (quoting Martin, 520 F.3d at 92). Rather, we defer to the sentence as reasonable so long as it is supported by "`a plausible sentencing rationale'" and reaches "`a defensible result.'" See Gentles, 619 F.3d at 89 (quoting Martin, 520 F.3d at 96).
Breton's sentencing hearing took place on October 12, 2012. The district judge began by recounting the materials he had received and reviewed since the pre-sentence conference, including the parties' sentencing memoranda with accompanying exhibits and the revised pre-sentence report with Breton's objections. After hearing from the victims
Next, the district judge calculated Breton's Guidelines sentence range. Pursuant to the Guidelines' rules of grouping, he grouped counts one (production) and three (distribution). See U.S.S.G. § 3D1.2. He then set the base offense level for count two (possession) at eighteen. See U.S.S.G. § 2G2.2. Adopting the pre-sentence report's recommended adjustments, he calculated the total offense level for count two to be thirty-four.
At total offense level forty-three and criminal history category I, the Guidelines sentence was life in prison. See U.S.S.G. § 5A (Sentencing Table). However, as the district judge noted, a maximum term of life was not available under any of the charged statutes: the production count carried a minimum of fifteen years and a maximum of thirty years, see 18 U.S.C. §§ 2251(a), 2251(e); the possession count set a maximum of ten years, see 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2);
Breton objected to setting the Guidelines range at 720 months. Relying on an appendix to the Commission's 2011 Sourcebook of Federal Sentencing Statistics (the "Sourcebook"), Breton argued that the Commission had capped a life sentence at 470 months, meaning that a 720-month sentence would far exceed what was considered a life sentence. Because the charged statutes did not authorize imposition of a life sentence, he argued the statutory maximum (and, consequently, the Guidelines sentence) that applied to him must be below 470 months. Returning to the Guidelines, Breton argued he should be subject to the next-highest Guidelines sentence offered below life imprisonment: 360 months. See U.S.S.G. § 5A (Sentencing Table).
The section of the Sourcebook to which Breton referred sets forth a description of the variables used to generate statistics about federal sentencing. The relevant language reads as follows:
Sourcebook, Appendix A, at 3 (emphasis added). Similar language describes variables used to tabulate sentence length. Id.
The district judge disagreed with Breton's interpretation of this text. Rather than "capping" life sentences as effectuated at 470 months, this was "an explanation of how the Commission staff compiled their statistics and data." He went on:
In other words, the Sourcebook's explanation had nothing to do with calculating the Guidelines sentence range.
Consequently, the district judge maintained that Breton's Guidelines sentence range was up to 720 months. He considered whether downward departures were warranted but applied none because the Guidelines generally forbid such departures in child pornography cases. See U.S.S.G. § 5K2.0. He then weighed the statutory factors to be considered in imposing a sentence under 18 U.S.C. § 3553(a). On the one hand, the abhorrent nature of the offense (particularly against Breton's own child) and the need for adequate deterrence called for harsh punishment. See 18 U.S.C. § 3553(a). On the other, Breton's history and characteristics were "generally good:" this was his first offense, and by all accounts he appeared to be "intelligent, hardworking, [and] respected by his employer, his employees, [and his] family." See id. According to the district judge, a strong sentence and a term of supervised release would protect the public. See id. The judge also expressly considered the interests of proportionality, promoting respect for the law, imposing just punishment, and avoiding unwanted sentence disparities among defendants with similar records who have been found guilty of similar conduct. See id.
Finally, the district judge observed that his overall duty was to impose a procedurally and substantively reasonable sentence. In his view, a 720-month sentence was plainly not reasonable. The government had argued that a twenty-five to thirty-year sentence would be appropriate; Breton argued that a fifteen-year sentence (the statutory minimum for count one) would be more reasonable. Considering the factors outlined above, the judge agreed with the government. He settled on a sentence of 340 months (twenty-eight years and four months) for count one, to run concurrently with 120 months for count two and 240 months for count three, followed by a fifteen-year term of supervised release.
On appeal, Breton alleges a single procedural error: the improper calculation
Like the district judge, we reject Breton's argument. Though 470 months may be an accurate statistical representation of the actual length of many life sentences—and may indeed be equivalent to a life sentence for many individuals—there is no "cap" within the Guidelines that limits life sentences to 470 months, and we have no reason to believe the Commission intended to set such a limit by publishing its statistical analysis. Accordingly, the district judge followed appropriate procedure when, upon finding that the recommended Guidelines range of a life sentence was unavailable for the crimes charged, he combined the respective statutory maximum penalties to set Breton's Guidelines sentence at 720 months. See U.S.S.G. § 5G1.1(a). There was no procedural error here.
Furthermore, we cannot say the district judge abused his discretion by imposing a sentence of 340 months. This term is less than half the length of the Guidelines sentence that Breton opposed so vigorously, and it is twenty months below the maximum sentence for count one of Breton's conviction. See 18 U.S.C. §§ 2251(a), 2251(e). It represents the district judge's comprehensive understanding of the facts and careful weighing of the § 3553(a) factors at play in this case. Moreover, Breton himself offers no argument against the substantive reasonableness of the sentence actually imposed at this stage of the case.
We have previously expressed our view that the Guidelines sentence ranges that operate in child pornography cases are harsher than necessary. See Stone, 575 F.3d at 97. However, under the applicable Guidelines, the sentence imposed here was both procedurally and substantively reasonable. Accordingly, Breton's challenge fails.
For the reasons stated, we affirm Breton's convictions and his sentence.
We note that the operating system on the laptop was Microsoft Windows Vista Home, while the computers used by Special Agent Fasulo ran Microsoft Windows Vista Business. Special Agent Fasulo testified that he thought the difference between these systems for his purposes was negligible, and so there was no need to procure Windows Vista Home for the test computers.
Massachusetts law excepts "child abuse proceedings, including incest," from the marital communications privilege. Mass. Gen. Laws Ann. ch. 233 § 20. Massachusetts courts have interpreted a similar exception to the spousal testimony privilege to apply to "abuse of any child." Villalta v. Commonwealth, 428 Mass. 429, 702 N.E.2d 1148, 1152 (1998).
New Hampshire courts recognize a public policy exception to the marital communications privilege for cases involving sexual abuse of a child of either spouse residing in the home. State v. Pelletier, 149 N.H. 243, 818 A.2d 292, 298 (2003) (interpreting N.H. R. Evid. 504).
Puerto Rico law contains an exception to the marital communications privilege for "[a] crime against the person or property of the other spouse or a child of either." P.R. Laws Ann. tit. 32, Ap. IV R. 27(D)(2)(i).
Rhode Island courts interpret state statute as permitting a witness-spouse to testify voluntarily about confidential marital communications in a criminal case, regardless of whether she is a victim and notwithstanding the defendant-spouse's objection. See State v. Angell, 122 R.I. 160, 405 A.2d 10, 15-16 (1979) (citing State v. Kenyon, 18 R.I. 217, 26 A. 199 (1893), and interpreting R.I. Gen. Laws Ann. § 12-17-10).
Breton has never disputed that the Minor A images qualify as child pornography and satisfy the interstate commerce element.
Again, Breton has never disputed that the images found qualify as child pornography and satisfy the interstate commerce element.
