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United States v. McCloud

December 29, 2009

UNITED STATES OF AMERICA, APPELLEE,
v.
DONNELL MCCLOUD, APPELLANT.



Appeal from the United States District Court for the Eastern District of Missouri.

The opinion of the court was delivered by: Smith, Circuit Judge.

Submitted: September 24, 2009

Before BYE, ARNOLD, and SMITH, Circuit Judges.

Donnell McCloud was convicted of three counts of producing child pornography, in violation of 18 U.S.C. § 2251(a), for taking photographs of three minor females engaged in sexually explicit conduct. McCloud raises five arguments for reversal, which include his argument that the government failed to prove that he produced the images and four arguments challenging the constitutionality of § 2251(a). For the reasons discussed below, we reject McCloud's arguments and affirm the judgment of the district court.*fn1

I. Background

In 2008, the St. Louis Police Department executed a search warrant at McCloud's apartment for narcotics and weapons. After entering the residence, officers observed McCloud-a 28-year-old male-dive out of his bedroom to the living room naked. A nude, 15-year-old female, K.G., was hiding under the bed. The officers seized a Kodak camera and computers from McCloud's apartment. The Kodak camera contained a Lexar 512 MB memory card. In turn, the memory card contained 12 videos. The videos, seven of which were shown to the jury, depict K.G. engaged in oral and vaginal sexual intercourse with McCloud or K.G.'s exposed genitals.

Law enforcement had previously investigated McCloud in 2004 for the statutory rape of G.D., a 14-year-old girl. At that time, Detective Karon Crocker went to McCloud's residence and spoke to Teresa Strong, McCloud's live-in girlfriend. Strong gave Detective Crocker permission to search the residence for evidence of McCloud's relationship with G.D. Police found a scrap of paper with G.D.'s name on it hidden inside a stereo speaker. They seized numerous cameras from the residence, as well as a blue bag from the storage area of the basement containing hundreds of photographs depicting sexual acts with young females. According to Detective Crocker, the blue bag contained 96 photographs of G.D. in various stages of nudity and engaged in sexual acts. For example, ten of the photographs depicted G.D. displaying her nude genitals or engaged in sexual acts with a male. The photographs were printed on Fujicolor crystal archive photo paper. Detective Crocker testified that G.D. had identified the photographs as depicting her and McCloud and signed the backs of the photographs.

When Detective Joe Kuster arrested McCloud in 2008 for the statutory rape and sodomy of K.G., McCloud told Detective Kuster that he liked young teenage girls. Thereafter, Detective Richard Noble reviewed the evidence from the 2004 statutory rape investigation of G.D. He examined the blue canvas bag that contained hundreds of photographs of young females that were clothed, partially clothed, nude, and engaged in sexual acts. He attempted to sort them by the females depicted in the photographs. During his examination, he found a 2003/2004 McCluer High School ID for C.W. He located approximately a hundred photographs of C.W. clothed or partially dressed and engaged in sexual acts. Detective Noble showed the photographs to C.W., who identified them as depicting her when she was 14 years old. Detective Noble testified at trial that eight of the admitted photographs depicted C.W. and that six of the photographs depicted her nude or performing oral sex. The photographs were printed on Fujicolor crystal archive photo paper.

McCloud was indicted on three counts of production of child pornography ("Counts 1, 5, and 6.").*fn2 Prior to trial, McCloud filed pretrial motions, and the district court held two separate evidentiary hearings. McCloud moved to dismiss, inter alia, Counts 1, 5, and 6 because (1) the government failed to show that the instrumentalities allegedly used traveled in or otherwise affected interstate commerce; (2) the memory card and the photo paper were not criminal instrumentalities; and (3) § 2251(a) is an unconstitutional exercise of Congress's authority under the Commerce Clause. The district court denied McCloud's motion to dismiss.

Thereafter, the government submitted a motion in limine to exclude any evidence, argument, or affirmative defense that McCloud was made to believe and did in fact mistakenly believe that some of the victims for the charge of production of child pornography were at least 18 years old. The district court granted the motion.

At trial, K.G.-the victim in Count 1-testified that she met McCloud on the UrbanChat page and that they communicated through UrbanChat, MySpace, and by telephone. K.G. told McCloud that she wanted to leave home and go to Wichita, Kansas, but he refused to take her. He agreed to buy her a Greyhound bus ticket to come to stay with him in St. Louis. K.G.-then age 14-traveled from Springfield, Missouri, to St. Louis, Missouri. McCloud took her to his apartment. Within a few days, McCloud engaged in oral and vaginal sexual intercourse with K.G. McCloud also took photographs of himself having oral and vaginal sex with K.G. K.G. identified the seven videos on the memory card as depicting McCloud having sex with her. She stated that McCloud took the videos.

The government admitted K.G.'s birth certificate into evidence, which showed that her date of birth was February 1, 1993. Thus, the birth certificate established that K.G. was 14 years old and then turned 15 years old during the alleged creation of the child pornography. K.G. acknowledged that her MySpace page stated that she was 17 years old. She said that she had a fake ID that represented her age to be 17.

The government introduced business records from Lexar Media, Inc. stating that the Lexar memory card was manufactured in Taiwan and shipped from Korea. The forensic examiner, Brian Mize, testified that the memory card containing the child pornography was manufactured in Taiwan and shipped to the United States via Korea.

G.D. was the victim of Count 5. At trial, her birth certificate was admitted, which indicated that her date of birth was June 5, 1990. Her death certificate attested that her date of death was May 7, 2005.

C.W. was the victim of Count 6. Her birth certificate was admitted into evidence attesting that her date of birth was May 2, 1989. C.W. testified that, when she was 14 years old and a freshman in high school, she met McCloud through a friend. She told McCloud that she was a freshman in high school and 14 years old. She testified that she and McCloud engaged in oral and vaginal sex. According to C.W., McCloud took photographs of her nude and engaged in sexual intercourse with him. He took the photographs at his house and at his grandmother's house. McCloud ended the relationship because C.W. was turning 15 years old. C.W. identified herself as the girl in the photographs. She stated that McCloud took the photographs. She also testified that, in some of the photographs, she is performing oral sex on McCloud.

The government introduced business records from Fujifilm U.S.A., Inc. ("Fujifilm") into evidence. The records stated that Fujicolor crystal archive photo paper is primarily produced in Greenwood, South Carolina, and that a small percentage of the paper comes from the Netherlands. The business records indicate that the Greenwood plant was founded in 1988 and that the color paper portion of the plant opened in August 1996.

At the close of the government's case-in-chief, McCloud stated, "I'll move for an acquittal at the close of the government's evidence arguing to this court that the case is insufficient as a matter of law." The district court denied the motion.

McCloud testified that he met K.G. on the Internet. He purchased a bus ticket for her and picked her up from the Greyhound station. He started having sexual relations with her within a week. He testified that he had sex with C.W. for about six months. He stated that he takes photographs of himself engaged in sexual activities with girlfriends. The blue bag was filled with photographs that he took over the course of his lifetime. He admitted that he had taken photographs of G.D. in the nude. He admitted that he took photographs of C.W. nude and engaged in oral sex. He also admitted that he took seven videos of K.G. that were shown to the jury.

During trial, the district court prohibited McCloud from introducing evidence that he was mistaken ...


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