Appeal from United States District Court for the District of North Dakota - Fargo
The opinion of the court was delivered by: Colloton, Circuit Judge.
Submitted: October 19, 2012
Before RILEY, Chief Judge, BEAM and COLLOTON, Circuit Judges.
Following a jury trial, Scott Boyle was convicted of the sexual exploitation of a minor and attempting to sexually exploit a minor, in violation of 18 U.S.C. §§ 2251(a) and (e), and of possession of materials involving the sexual exploitation of a minor, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2). The district court*fn1 sentenced Boyle to 180 months' imprisonment. Boyle appeals his convictions, and we affirm.
In June 2010, Boyle and his girlfriend, Kasondra Lutz, lived together in Fargo, North Dakota. While cleaning underneath Boyle's computer desk, Lutz discovered two videotapes concealed behind the desk. When Lutz watched parts of each tape, she saw two naked young girls, one of whom she recognized as Boyle's three-year-old daughter, A.B. Lutz also recognized Boyle when he appeared in one of the tapes.
After watching the videos, Lutz hid them in a storage unit on her mother's property. Lutz eventually asked Boyle about the videotapes over the phone. She told him that if things were going to work out between them "she needed to know the truth."
Boyle initially called Lutz a liar and denied knowing anything about the tapes. Later in the conversation, however, he asked Lutz what she did with the tapes. Lutz lied and told him that she destroyed the tapes. Boyle responded that if anyone "found them or got ahold of them that his life would be ruined." After being released from a drug rehabilitation program in April 2011, Lutz "wanted to do the right thing," and gave the tapes to her probation officer, Erin Williams. Williams brought the tapes to the Fargo Police Department.
Lutz told the police that one of the girls on the tape was A.B. and that the other girl might be the daughter of Boyle's former friend, Jayne Marek. Using police files and school records, the police learned that Marek's daughter was named S.M. A detective interviewed S.M. and determined that she was the other girl in the videos.
This case involves one of the two tapes Lutz found behind Boyle's desk. The tape includes three scenes that led to the charges against Boyle. The first is a portion of the video that depicts A.B. and S.M. playing naked on a bed. The second is a portion that depicts A.B. and S.M. bathing. In both scenes, the camera is hidden and Boyle repeatedly enters the room to adjust it. In the bedroom scene, Boyle moves a stack of clothes or towels that is between the camera and S.M. In the bathroom scene, Boyle gives the girls soda, ice cream, and a cookie, and Boyle tells S.M. that if she gives him a towel she is wearing, he will dry it and give it back to her when she gets out of the tub. The third scene is a looping series of still images that depict a prepubescent vagina. Jayne Marek testified that A.B. was three years old and S.M. was ten or eleven years old at the time of the recordings.
On July 14, 2011, a grand jury returned a three-count indictment against Boyle. Count One charged Boyle with producing and attempting to produce "a videotape containing still images of a minor engaging in sexually explicit conduct." Count Two charged him with producing and attempting to produce "a videotape containing videos of children engaging in sexually explicit conduct." Count Three charged Boyle with possessing materials depicting a minor engaging in sexually explicit conduct. Boyle pleaded not guilty, and the case proceeded to trial.
The government's theory of the case was that Boyle surreptitiously recorded the girls to produce sexually explicit images of S.M. The prosecution argued that all of Boyle's actions, including his repeated adjustments of the camera, were an attempt to capture S.M.'s genitals on the videotape.
Boyle's defense was that he had no idea the tapes even existed, and that he had been framed by Marek. Boyle testified that Marek asked him to monitor the children because she wanted to smoke drugs in a nearby room. According to Boyle, Marek was afraid that S.M. would catch her using drugs unless Marek had some way of watching her. Boyle testified that his adjustments of the camera were not attempts to focus on S.M.'s genitals, but rather attempts to improve the reception of the television in the room next door or to protect the camera from a dripping showerhead. Boyle said he did not know that the footage of the monitoring was recorded onto a videotape. Marek testified that she never asked Boyle to monitor S.M.
After the close of the government's case, the district court dismissed Count One, ruling that the government had presented insufficient evidence that Boyle produced the still images. The court instructed the jury that Count One had been resolved, that it should not speculate as to why, and that it should not discuss Count One during its deliberations. The court then submitted Counts Two and Three to the jury, and the jury convicted Boyle on both counts. ...