USA v. Rivera, No. 06-4946 (2d Cir. 2008)
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06-4946-cr USA v. Rivera 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued: April 22, 2008 Decided: October 15, 2008) Docket No. 06-4946-cr - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, - v.CARLOS F. RIVERA, a.k.a. CHAVIN1970, a.k.a. LATIN RICAN 70, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, KEARSE, KATZMANN, Circuit Judges. Carlos Rivera appeals from a judgment convicting him of 31 five counts involving the sexual abuse of children, entered 32 following a jury verdict in the United States District Court 33 for the District of Connecticut (Kravitz, J.). 34 Rivera challenges (inter alia) the sufficiency of the 35 evidence on his conviction for production of child 36 pornography, arguing that certain photographs were not On appeal, 1 lascivious within the meaning of the child pornography 2 laws. 3 4 5 6 7 8 9 10 11 12 13 14 15 We affirm. MARJORIE M. SMITH, Piermont, NY, for Defendant-Appellant. ERIC J. GLOVER, New Haven, CT (Kevin J. O Connor, United States Attorney, District of Connecticut, on the brief, William J. Nardini, of counsel), for Appellee. DENNIS JACOBS, Chief Judge: Carlos Rivera appeals from a judgment of conviction 16 entered on October 24, 2006, in the United States District 17 Court for the District of Connecticut (Kravitz, J.), 18 following a jury trial at which he was found guilty of 19 charges involving sexual exploitation of children. 20 charges included coercion and enticement to sexual conduct, 21 travel with intent to engage in such conduct, and the 22 possession and production of child pornography. 23 recidivist, Rivera was sentenced to a mandatory term of life 24 imprisonment on the conviction for producing child 25 pornography. 26 the offenses against the minor named Brian, and sentencing) 27 are controlled by established precedent and are addressed 28 briefly below. Those As a Two issues presented on appeal (misjoinder of 2 1 We write primarily to consider the District Court s 2 jury instruction on the meaning of lascivious for purposes 3 of 18 U.S.C. § 2256(2)(A)(v). 4 photographs of a naked 16-year old male on a bed do not 5 satisfy the statutory definition. Rivera contends that his 6 7 BACKGROUND 8 The evidence showed a pattern of predatory conduct. 9 Rivera met boys in Internet chat rooms, exchanged sexually 10 explicit messages and photographs with them, and arranged to 11 meet them for illicit sexual encounters. 12 encounter, Rivera created the photographs that ground his 13 conviction for production of child pornography. 14 15 During one such Four of Rivera s victims testified at trial, as follows in our brief and bowdlerized summary.1 16 Brian told Rivera that he was twelve years old and 17 lived in Nebraska. After some months of online chats about 18 sex (including explicit video images of Rivera), Brian 19 disclosed that his family was taking a trip to Washington, 20 D.C. Rivera drove from his Connecticut home, checked into 1 Because the victims of Rivera s crimes were minors, only their first names were given at trial. 3 1 the hotel where Brian and his family were staying, and 2 enticed Brian to his room for sex--posting notes with his 3 screen name on a trail to his room, giving Brian a room-key 4 (which Brian hid from his parents and then returned), 5 confronting Brian in the lobby (with his parents nearby), 6 and leaving his room door ajar. 7 appeared, they engaged in oral and anal sex. 8 that time, Brian was thirteen years old. 9 GSA-11. When Brian GSA-14. By Garrett told Rivera that he was fifteen years old (in 10 fact, he was fourteen). 11 online chats, and arranged an encounter near their homes in 12 Connecticut. 13 where Rivera had suggested that they meet. 14 unable to get a room, Garrett declined to accompany Rivera 15 to his house. 16 Garrett s house, where they had anal sex. 17 asked Rivera to buy him a paintball gun for his birthday. 18 When Garrett sought to disengage, Rivera threatened to tell 19 all to Garrett s mother; Garrett threatened to call the 20 police. GSA-61. 21 22 Rivera engaged Garrett in explicit Garrett bicycled to a hotel near his house When they were A week later, they met in the woods outside GSA-57. Garrett David was sixteen years old when he met Rivera online. David agreed to meet Rivera for sex, and Rivera arrived 4 1 around midnight at David s home in Massachusetts. 2 sneaked out while his parents slept and went to a hotel with 3 Rivera. 4 several photographs of David lying naked on the hotel bed. 5 David testified that Rivera suggested a few positions and 6 that he complied. 7 introduced at trial to evidence Rivera s production of child 8 pornography. 9 home. 10 David After the two showered together, Rivera took GSA-65. Six of the photographs were After oral and anal sex, Rivera drove David GSA-67. When Michael was sixteen, he and Rivera had online 11 chats about sex and exchanged photographs of themselves, 12 clothed and unclothed. 13 refused to meet Rivera for sex, he blackmailed me and said 14 he was going to send those pictures that I sent him to 15 another student that goes to my school. 16 Michael testified that after he GSA-71. Rivera was captured by the police after Brian s mother 17 found an incriminating note. A state trooper, posing as 18 Brian, engaged Rivera in an Internet chat about what had 19 transpired between them. 20 declined to sign a form attesting that he had waived his 21 Miranda rights; however, he agreed to be interviewed by the 22 authorities for two hours. When he was arrested, Rivera At trial, the arresting police 5 1 detective testified that during the interview, Rivera 2 admitted to having had sex with Brian, who he thought 3 looked young. GSA-45-46. 4 A special agent of the FBI testified to the contents of 5 Rivera s laptop computer, which included between 2,000 and 6 3,000 photographs of minors engaged in sexually explicit 7 conduct, including the pictures Rivera took of David and 8 photographs of Garrett and Michael that they had sent him; a 9 chart detailing Rivera s sexual encounters (which listed 10 both Garrett and Brian);2 the record of an online chat in 11 which Rivera gloated about having had sex with several boys 12 (including Garrett and Brian); and a template blackmail 13 letter threatening to tell a minor s parents that their 14 child is gay unless the minor agreed to make a pornographic 15 video with Rivera and to continue having sex with him.3 The 2 The chart gathered data under the following headers: name, age, year, virgin (Y or N), and fucked (number of times). The government also introduced a handwritten version of the same chart. 3 The template, saved under file name BlackMail.doc, stated: Hey ______ I decided to blackmail you. U WILL have sex with ME in real LIFE, again, and you WILL let me make a PORN video with you. IF you don t do as I say and let me do what I want, I ll write to your PARENTS at this address ______ 6 1 government also introduced into evidence records of the 2 emails and online chats Rivera had exchanged with Brian, 3 Garrett, David and Michael. 4 The jury convicted Rivera on all five counts: two 5 counts of coercion and enticement, in violation of 18 U.S.C. 6 § 2422(b), one count of travel with intent to engage in 7 illicit sexual conduct, in violation of 18 U.S.C. § 2423(b), 8 one count of production of child pornography, in violation 9 of 18 U.S.C. § 2251(a), and one count of possession of child 10 pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). 11 special interrogatories accompanying the verdict on count 12 four (for production of child pornography), the jury 13 identified four of the photographs of David as visual 14 depictions of sexually explicit conduct (a phrase explained 15 in the District Court s jury charge), and therefore child 16 pornography. 17 In The District Court imposed concurrent sentences of: 480 And I will let them know that you are GAY. I will also send them info about your online activities chats and will also tell them where they can find more info/ NOTE: IF you banish [sic] from online without giving in to my demands I will still do what I just said above. U can t hide, U will be the loser. 7 1 months imprisonment on counts one and two; 480 months 2 imprisonment on count three; the mandatory term of life 3 imprisonment on count four; and 240 months imprisonment on 4 count five. 5 discretionary restitution for the victims losses, including 6 their psychiatric treatment and care. The District Court also imposed mandatory and 7 8 DISCUSSION 9 Rivera argues that his photographs of David do not 10 constitute child pornography, that is, that the evidence was 11 insufficient for a conviction on count four; in the 12 alternative, he contends that the jury was misled by the 13 District Court s instructions. 14 District Court s denial of his motion to sever the counts 15 relating to Brian from the counts relating to his other 16 victims. 17 constitutional grounds. Rivera also challenges the Lastly, Rivera challenges his sentence on 18 19 I 20 It is illegal to entice or coerce a minor to engage in 21 sexually explicit conduct for the purpose of producing any 22 visual depiction of such conduct. 8 18 U.S.C. § 2251(a). 1 [S]exually explicit conduct is defined to include the 2 lascivious exhibition of the genitals or pubic area of any 3 person. 4 Id. § 2256(2)(A)(v). The term lascivious is not self-defining. See United 5 States v. Villard, 885 F.2d 117, 121 (3d Cir. 1989) 6 ( Whatever the exact parameters of lascivious exhibition, 7 we find it less readily discernable than the other, more 8 concrete types of sexually explicit conduct listed in 9 section 2256(2). ); United States v. Hill, 322 F. Supp. 2d 10 1081, 1084 (C.D. Cal. 2004) ( Lasciviousness is an elusive 11 concept, and courts have struggled to develop a test for 12 identifying it. (footnote omitted)). 13 v. Frabizio, 459 F.3d 80, 85 (1st Cir. 2006) ( The statutory 14 standard needs no adornment. ). 15 is of little help in drawing lines. 16 But see United States The dictionary definition4 The leading case is United States v. Dost, 636 F. Supp. 17 828 (S.D. Cal. 1986), aff d sub nom. United States v. 18 Wiegand, 812 F.2d 1239 (9th Cir. 1987). 19 judge Thompson enumerated six factors that the trier of 20 fact should look to . . . among any others that may be 4 There, district Given to or expressing lust; lecherous or [e]xciting sexual desires; salacious. The American Heritage Dictionary of the English Language (4th ed. 2006). 9 1 relevant in the particular case. 2 factors are: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 Id. at 832. The Dost 1) whether the focal point of the visual depiction is on the child s genitalia or pubic area; 2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; 3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; 4) whether the child is fully or partially clothed, or nude; 5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; 6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. Id. Here, the District Court charged the jury as follows, using the Dost factors: The term lascivious exhibition means a depiction which displays or brings to view to attract notice to the genitals or pubic area of minors in order to excite lustfulness or sexual stimulation in the viewer. Not every exposure of the genitals or pubic area constitutes a lascivious exhibition. In deciding whether a particular depiction constitutes a lascivious exhibition 10 1 2 3 4 5 6 7 which displays or brings to view to attract notice to the genitals or pubic area of minors in order to excite lustfulness or sexual stimulation in the view, you should consider the following questions . . . . A-70. The court then described the Dost factors. 8 Rivera presses two arguments on appeal: first, that the 9 photos of David taken by Rivera do not fit the parameters of 10 the Dost factors, i.e., that the evidence was insufficient 11 to support a conviction under the jury charge that was 12 delivered; and second, that the Dost factors themselves are 13 infirm, and have been criticized by many courts. 14 A 15 16 A defendant challenging the sufficiency of the evidence 17 bears a heavy burden. United States v. Griffith, 284 F.3d 18 338, 348 (2d Cir. 2002). 19 viewed in the light most favorable to the government and all 20 permissible inferences drawn in its favor, but if the 21 evidence, thus construed, suffices to convince any rational 22 trier of fact of the defendant s guilt beyond a reasonable 23 doubt, the conviction must stand. 24 Martinez, 54 F.3d 1040, 1042 (2d Cir. 1995) (internal 25 citation omitted). Not only must the evidence be 11 United States v. 1 A reasonable jury could--and did--find that the four 2 photographs depict the lascivious exhibition of a minor s 3 genitals. 4 room bed, his genitals prominent at or about the center of 5 the frame. 6 directly at the camera: in one, David is lying on his chest, 7 his upper body raised on his elbows, while he looks over his 8 left shoulder toward the camera; in another, David lies on 9 his back, the right side of his body resting on his right 10 The images all show David lying naked on a hotel Two of the photographs depict David looking elbow. 11 Although the Dost factors are not definitional, they 12 are useful for assessing the sufficiency of evidence, and 13 pose questions that are (at least) germane to the issue of 14 lasciviousness. 15 several Dost factors: a bed is generally associated with 16 sexual activity, Dost, 636 F. Supp. at 832, and so is the 17 pose, lying down with legs spread; the subject is naked; one 18 photo, in which the subject s head is turned to an unseen 19 observer (the photographer) suggests sexual encounter; and 20 the genital area is the focal point. 21 have context that reinforces the lascivious impression. 22 David testified that Rivera arranged the poses and took the Here, all four photographs arguably satisfy 12 Finally, these images 1 photographs. Rivera was responsible for the mise-en-scène. 2 A reasonable jury could therefore find that Rivera composed 3 the images in order to elicit a sexual response in a viewer- 4 -himself. 5 material, the production of which Congress intended to 6 crmiinalize. These images are unquestionably lascivious 7 B 8 9 We review de novo the propriety of jury instructions. 10 United States v. Naiman, 211 F.3d 40, 50 (2d Cir. 2000). 11 jury instruction is erroneous if it misleads the jury as to 12 the correct legal standard or does not adequately inform the 13 jury on the law. 14 (2d Cir. 1999) (internal quotation marks omitted). 15 government argues that we should review for plain error 16 because Rivera did not object to the jury instructions on 17 the precise ground he argues on appeal. 18 that issue, however, because we affirm the District Court s 19 jury instruction as an accurate statement of the law. 20 A United States v. Walsh, 194 F.3d 37, 52 The We need not resolve As Rivera argues, use of the Dost factors has provoked 21 misgivings. See, e.g., Frabizio, 459 F.3d at 88 ( [T]he 22 Dost factors have fostered myriad disputes that have led 13 1 courts far afield from the statutory language. . . . [T]here 2 is a risk that the Dost factors will be used to 3 inappropriately limit the scope of the statutory 4 definition. ); Hill, 322 F. Supp. 2d at 1085 ( While the 5 Dost factors attempt to bring order and predictability to 6 the lasciviousness inquiry, they are highly malleable and 7 subjective in their application. ). 8 F.2d at 122 ( [T]he Dost factors provide specific, sensible 9 meaning to the term lascivious, a term which is less than 10 11 But see Villard, 885 crystal clear. ). Tellingly, nearly all of the Dost-factor critics have 12 lined up behind an argument that is of no help to Rivera. 13 Their underlying concern is that the factors sweep too 14 narrowly, i.e., that [t]he standard employed by the 15 district court was over-generous to the defendant . . . . 16 Wiegand, 812 F.2d at 1239 (emphasis added); see also 17 Frahizio, 459 F.3d at 88 (expressing concern that the 18 Dost factors will be used to inappropriately limit the scope 19 of the statutory definition ); United States v. Wolf, 890 20 F.2d 241, 245 & n.6 (10th Cir. 1989) ( We do not hold that 21 more than one Dost factor must be present to constitute a 22 violation of 18 U.S.C. § 2251(a). ). 14 However, this case 1 offers no occasion for considering the circumstances, if 2 any, in which the Dost factors might prove too generous to 3 defendants, an issue the Government does not press on 4 appeal. 5 Much criticism has focused on the fifth Dost factor, 6 which asks whether the visual depiction suggests sexual 7 coyness or a willingness to engage in sexual activity. 8 Dost, 636 F. Supp. at 832. 9 Ninth Circuit considered that inquiry over-generous to the On direct appeal in Dost, the 10 defendant in implying as to the 17-year-old girl that the 11 pictures would not be lascivious unless they showed sexual 12 activity or willingness to engage in it. 13 at 1244. 14 lasciviousness is not a characteristic of the child 15 photographed but of the exhibition which the photographer 16 sets up for an audience that consists of himself or 17 likeminded pedophiles. 18 simpler, more subjective test was called for: the pictures 19 were an exhibition, and the exhibition was of the 20 genitals ; [i]t was a lascivious exhibition because the 21 photographer arrayed it to suit his peculiar lust. 22 Several other courts have concurred in this critique. Wiegand, 812 F.2d To that court, the factor looked the wrong way-- Id. The court implied that a 15 Id. See, 1 e.g., Frabizio, 459 F.3d at 89 ( The absence of a sexual 2 come-on . . . does not mean that an image is not lascivious 3 . . . . Children do not characteristically have countenances 4 inviting sexual activity, and the statute does not presume 5 that they do. ); United States v. Wolf, 890 F.2d 241, 245 6 (10th Cir. 1989) ( [T]he Ninth circuit clearly stated that 7 to violate 18 U.S.C. § 2251 the photographer need not 8 portray the victimized child as a temptress. 9 the Ninth Circuit s interpretation of the statutory We agree with 10 language. ); Hill, 322 F. Supp. 2d at 1086 ( Almost any 11 facial expression--or lack thereof--could fairly be 12 described as one of these. . . . 13 course an innocent child can be coaxed to assume poses or 14 expressions that bespeak sexual availability when viewed by 15 certain adults, resulting in an image that suggests sexual 16 coyness or a willingness to engage in sexual activity 17 regardless of the child s own characteristics. 18 Not much help here. ). The sixth Dost factor has also been criticized. Of It 19 asks whether the visual depiction is intended or designed 20 to elicit a sexual response in the viewer. 21 Supp. at 832. 22 196 (3d Cir. 2002) ( The final Dost factor simply puts again Dost, 636 F. See, e.g., Doe v. Chamberlin, 299 F.3d 192, 16 1 the underlying question: Is the exhibition lascivious? ); 2 Hill, 322 F. Supp. 2d at 1086 ( This factor has no 3 independent force. ). 4 most confusing and contentious of the Dost factors, 5 suggesting that it invites more questions than it answers: The First Circuit has labeled it the 6 7 8 9 10 11 12 13 14 15 16 Is this a subjective or objective standard, and should we be evaluating the response of an average viewer or the specific defendant in this case? Moreover, is the intent to elicit a sexual response analyzed from the perspective of the photograph s composition, or from extrinsic evidence (such as where the photograph was obtained, who the photographer was, etc.)? United States v. Amirault, 173 F.3d 28, 34 (1st Cir. 1999). 17 After all, if the sixth factor were to focus on the 18 defendant s subjective reaction to the photograph, as 19 opposed to the photograph s intended effect, a sexual 20 deviant s quirks could turn a Sears catalog into 21 pornography. 22 ( Private fantasies are not within the statute s ambit. ). 23 The First Circuit has further questioned whether the inquiry 24 should be limited to the four corners of the image or 25 extend to evidence of the sexual exploitation involved in 26 making the image. 27 Amirault, 173 F.3d at 34 (expressing doubt that a fact- Id.; see also Wiegand, 812 F.2d at 1245 Frabizio, 459 F.3d at 89-90; see also 17 1 finder should consider the context surrounding the creation 2 and acquisition of the photograph ). 3 4 The Third Circuit has resolved the objection as follows: 5 6 7 8 9 10 11 12 13 14 Villard, 885 F.2d at 125. 15 being a separate substantive inquiry about the photographs, 16 the sixth Dost factor is useful as another way of inquiring 17 into whether any of the other five Dost factors are met. 18 Id. 19 We must . . . look at the photograph, rather than the viewer. If we were to conclude that the photographs were lascivious merely because [the defendant] found them sexually arousing, we would be engaging in conclusory bootstrapping rather than the task at hand--a legal analysis of the sufficiency of the evidence of lasciviousness. So, to that court, rather than Some of this criticism is mitigated once one 20 distinguishes between the production of child pornography 21 and possession. 22 having produced child pornography. 23 the Ninth Circuit to hold that the pictures were a 24 lascivious exhibition because the photographer arrayed it to 25 suit his peculiar lust. 26 a point of distinction that the defendants in Amirault, 27 Villard and Frabizio were charged with having possessed (or In Dost, the defendants were charged with It was thus logical for Wiegand, 812 F.2d at 1244. 18 It is 1 transported) child pornography; there was no allegation that 2 they located the victims, arranged or posed the scenes, or 3 otherwise produced the visual depiction. 4 factor is not easily adapted to a possession case. 5 The sixth Dost Similarly, the Dost factors are arguably of diminished 6 utility for purposes of Fourth Amendment analysis. See 7 Hill, 322 F. Supp. 2d at 1086-87 (advocating for test 8 dictating that [i]f an image of a minor displays the 9 minor s naked genital area, there is probable cause to 10 believe that the image is lascivious unless there are strong 11 indicators that it is not lascivious (footnote and emphasis 12 omitted)). 13 That concern is not implicated here. Notwithstanding valid criticisms and cautions about the 14 Dost factors, we see no error in the jury charge given by 15 the District Court. 16 Congress chose the word lascivious, which has to do 17 generally with sexual arousal. 18 unconstitutionally vague, see United States v. X-Citement 19 Video, Inc., 513 U.S. 64, 78-79 (1994); United States v. 20 Freeman, 808 F.2d 1290, 1292 (8th Cir. 1987), jurors (and 21 judges) need neutral references and considerations to avoid 22 decisions based on individual values or the revulsion 19 Although the statute is not 1 potentially raised in a child pornography prosecution. As a 2 definition of the word lascivious, the Dost factors are 3 imperfect and vulnerable to criticism. 4 definitional--nor do they purport to be. 5 that the trier of fact should look to the six enumerated 6 factors, but noted that others . . . may be relevant in the 7 particular case. 8 Judge Kravitz said that the jury should consider the 9 factors--not that the factors determine the question. But they are not Dost recommends Dost, 636 F. Supp. at 832. And here, They 10 are not mandatory, formulaic or exclusive. 11 mitigate the risk that jurors will react to raw images in a 12 visceral way, rely on impulse or revulsion, or lack any 13 framework for reasoned dialogue in the jury room. 14 the Dost factors impose useful discipline on the jury s 15 deliberations. 16 not been much improved upon. 17 As factors, they In short, They may do so imperfectly, but they have We need not decide whether the Dost factors would 18 govern in every case that touches on child pornography. 19 Among other things, it matters whether production or 20 possession is the charge. 21 court to recommend the Dost factors as considerations, 22 making any adaptations or allowances warranted by the facts But it is no error for a district 20 1 and charges in a particular case. That said, the jury 2 should not be made to rely on the Dost factors with 3 precision to reach a mathematical result, or to weigh or 4 count them, or to rely on them exclusively. 5 II 6 7 Rivera argues that the District Court erred in denying 8 his motion to sever counts two (enticement of Brian) and 9 three (interstate travel relating to Brian) from counts one 10 (enticement of Garrett), four (production of child 11 pornography depicting David) and five (possession of child 12 pornography). 13 charges was improper under Federal Rule of Criminal 14 Procedure 8(a), or in the alternative, that the District 15 Court abused its discretion in declining to sever the 16 charges under Rule 14(a). 17 Rivera contends that joinder of these five Our scrutiny of the district court s denial of a Rule 18 8 motion to sever requires a twofold inquiry: whether 19 joinder of the counts was proper, and if not, whether 20 misjoinder was prejudicial to the defendant. 21 v. Ruiz, 894 F.2d 501, 505 (2d Cir. 1990). 22 for the joinder of offenses that are of the same or similar 21 United States Rule 8(a) allows 1 character, or are based on the same act or transaction, or 2 are connected with or constitute parts of a common scheme or 3 plan. 4 those that are somewhat alike, or those having a general 5 likeness to each other. 6 922, 926 (2d Cir. 1980) (quoting the dictionary). 7 that have a sufficient logical connection to each other 8 can be tried together, Ruiz, 894 F.2d at 505, as can those 9 where the same evidence may be used to prove each count, 10 United States v. Blakney, 941 F.2d 114, 116 (2d Cir. 1991). 11 Federal Rule of Criminal Procedure 14(a) provides that Fed. R. Crim. P. 8(a). Similar charges include United States v. Werner, 620 F.2d Counts 12 [i]f the joinder of offenses or defendants in an 13 indictment, an information, or a consolidation for trial 14 appears to prejudice a defendant or the government, the 15 court may order separate trials of counts, sever the 16 defendants trials, or provide any other relief that justice 17 requires. 18 a motion under this rule for abuse of discretion, and do not 19 reverse unless the defendant demonstrates that the failure 20 to sever caused him substantial prejudice in the form of a 21 miscarriage of justice. 22 F.3d 183, 190 (2d Cir. 2004) (quoting Blakney, 941 F.2d at Fed. R. Crim. P. 14(a). We review the denial of United States v. Sampson, 385 22 1 2 116) (other internal quotations omitted). The joinder was proper. Counts one, two, three and 3 four share a general likeness in terms of the conduct and 4 events alleged: over a four-month period, Rivera targeted 5 Brian, Garrett, Michael, David in Internet chat rooms; 6 exchanged sexually explicit messages and photographs with 7 them; and enticed them to meet for illicit sexual 8 encounters. 9 photographs that form the basis of count four. During one of those encounters, Rivera took the And some of 10 the same exhibits were used to prove counts one, two and 11 three: the dossiers Rivera maintained of his sexual 12 experiences, which listed Garrett and Brian; and the 13 transcript of an Internet chat in which Rivera said that he 14 had abused five boys, including Garrett and Brian. 15 count five (possession of child pornography), we agree with 16 the Eleventh Circuit that child molestation and child 17 pornography . . . plainly represent acts of similar 18 character involving the extraordinary mistreatment of 19 children. 20 (11th Cir. 2002). 21 properly joined. 22 As to United States v. Hersh, 297 F.3d 1233, 1242 Accordingly, the five counts were Rivera fails to demonstrate that he suffered prejudice 23 1 from the joinder. Rivera posits a prejudicial spillover 2 because the government introduced evidence that Rivera had 3 issued threats to some of his victims and suggested (in 4 summation) that Rivera s photographs of David were 5 lascivious due to Rivera s general prurient interest in 6 young males. 7 the District Court overlooked the likelihood that the jury 8 would be profoundly influenced . . . by the cumulative 9 effect of evidence relating to distinct offenses in its Rivera contends that, in denying his motion, 10 assessment of whether the government had met its burden of 11 proof on any one charge. 12 Blue 18.5 This generalized claim of prejudice is insufficient. 13 The District Court instructed the jury to consider each 14 count separately and return a separate verdict of guilty or 15 not guilty for each of them, A-51, and that its verdict 16 must be unanimous as to each charge, A-84. 5 More In the District Court, Rivera asserted that joinder would prejudice his right to testify on certain counts but not on others. A-18. He has forfeited that argument on appeal, relying instead on the broader concern expressed in United States v. Werner, 620 F.2d 922 (2d Cir. 1980), that the jury may use the evidence cumulatively; that is, that although so much as would be admissible upon any one of the charges might not have persuaded them of the accused s guilt, the sum of it will convince them as to all. Id. at 929 (quoting United States v. Lotsch, 102 F.2d 35, 36 (2d Cir. 1939) (Learned Hand, J.). 24 1 particularly, Federal Rule of Evidence 414 provides that 2 [i]n a criminal case in which the defendant is accused of 3 an offense of child molestation, evidence of the defendant s 4 commission of another offense or offenses of child 5 molestation is admissible, and may be considered for its 6 bearing on any matter to which it is relevant. 7 Evid. 414(a). 8 below the age of fourteen. 9 proof as to counts two and three (relating to Brian, age Fed. R. The same rule defines child as a person Id. 414(d). As a consequence, 10 thirteen) would likely have been admissible as to the three 11 other counts. 12 specifically sanction the kind of showing that Rivera says 13 is impermissible and conducive to spillover. 14 Court did not violate Rule 8(a) and did not abuse its 15 discretion under Rule 14(a). The Federal Rules of Evidence thus The District 16 III 17 18 Rivera challenges his sentence as cruel and unusual, in 19 violation of the Eighth Amendment. Since Rivera failed to 20 raise this claim in the District Court, we deem it 21 forfeited. 22 (2d Cir. 2000) ( There is no reason why [the defendant s] United States v. Feliciano, 223 F.3d 102, 125 25 1 constitutional challenges could not have been raised below, 2 where he had ample opportunity to raise them and where the 3 district court would have had the opportunity to address 4 them. ). 5 In any event, Rivera s forfeited constitutional claim 6 is without merit. The Eighth Amendment forbids only 7 extreme sentences that are grossly disproportionate to the 8 crime. 9 2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 United States v. Yousef, 327 F.3d 56, 163 (2d Cir. 10 (1991) (Kennedy, J., concurring in part and concurring in 11 the judgment)). 12 punishment, successful challenges to the proportionality of 13 particular sentences have been exceedingly rare. 14 California, 538 U.S. 11, 21 (2003) (internal quotations 15 omitted) (rejecting Eighth Amendment challenge to 25-year 16 sentence for theft of golf clubs worth $1,200). 17 Rivera served a state sentence for molesting his niece and 18 nephew throughout their childhood, he sexually exploited 19 four adolescent boys, one of them only thirteen years old. 20 In light of the gravity of Rivera s offenses and his 21 recidivist nature, we cannot draw an inference of gross 22 disproportionality from the mandatory life sentence at [O]utside the context of capital 26 Ewing v. After 1 issue here. 2 Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring). 3 Lastly, Rivera s Sixth Amendment challenge to his 4 sentence is defeated by Almendarez-Torres v. United States, 5 523 U.S. 224 (1998). 6 7 8 CONCLUSION For the foregoing reasons, we affirm. 27
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