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United States v. Swain

United States District Court, W.D. North Carolina, Charlotte Division

April 22, 2019

UNITED STATES OF AMERICA
v.
BENJAMIN SWAIN, Defendant.

          ORDER

          MAX O. COGBURN JR. UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on Defendant's Motion to Dismiss Indictment or, in the Alternative, for a Bill of Particulars. (Doc. No. 17).

         I. BACKGROUND

         On June 17, 2016, a Georgia investigator contacted a detective with the Charlotte-Mecklenburg Police Department. The Georgia investigator was working a child molestation case involving a 15-year-old Georgia minor and Defendant, who was her 42-year-old tennis coach and who lived in Charlotte. During the Georgia investigation, Defendant admitted he had secretly recorded minors[1] while they undressed and showered in hotel rooms. He reported that he took the videos with a pen camera, and he told the investigator where to find the videos.

         A search warrant for Defendant's residence located his laptop and SIM card. Child pornography was located on both devices. The videos depicted three minor females undressing, showering, engaging in various grooming activities, and getting dressed. The videos were captured in two different bathrooms. Some of the videos captured the minors in the shower. Defendant is seen on some the videos, setting up the camera under the vanity and then adjusting the camera. The Government contends that the angle was set to ensure the minors' genitals would be captured.[2] Defendant is currently serving a sentence in Georgia related to his molestation of the minor in that state. The victim in that case is not one of the victims listed in the indictment in this case.

         On May 16, 2018, a grand jury returned an indictment charging Defendant with numerous charges relating to the sexual exploitation of minors. (Doc. No. 1). Counts One, Two, and Three allege violations occurring in April 2016. Count One charges Defendant with the sexual exploitation and attempted sexual exploitation of Victim 1, in violation of 18 U.S.C. § 2251(a). Count Two charges Defendant with the sexual exploitation and attempted sexual exploitation of Victim 2, in violation of 18 U.S.C. § 2251(a). Count Three charges Defendant with transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(1). Counts Four through Six allege violations occurring in June 2016. Count Four charges Defendant with the sexual exploitation and attempted sexual exploitation of Victim 1, in violation of 18 U.S.C. § 2251(a). Count Five charges Defendant with the sexual exploitation and attempted sexual exploitation of Victim 3, in violation of 18 U.S.C. § 2251(a). Count Six charges Defendant with transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(1). Count Seven charges that on June 17, 2016, Defendant possessed, and accessed with intent to view, material containing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).

         In his motion, Defendant alleges that the indictment is insufficient as a matter of law and should be dismissed. Defendant further states that if the Court denies his motion to dismiss, he seeks an order for a Bill of Particulars.

         II. DISCUSSION

         a. Defendant's Motion to Dismiss the Indictment

         An indictment is defective if it alleges a violation of an unconstitutional statute, or if the “allegations therein, even if true, would not state an offense.” United States v. Thomas, 367 F.3d 194, 197 (4th Cir. 2004). An indictment is sufficient if it “set[s] forth the offense in the words of the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the [offense] intended to be punished.'” United States v. Perry, 757 F.3d 166, 171 (4th Cir. 2014) (internal quotation marks omitted). An indictment that tracks the language of the statute and properly alleges each element “is valid on its face, ” and the court may not “review the sufficiency of evidence supporting” the indictment because a valid “indictment returned by a legally constituted and unbiased grand jury” is “enough to call for trial of the charges on the merits.” United States v. Wills, 346 F.3d 476, 488-89 (4th Cir. 2003). See also United States v. Burks, 746 Fed.Appx. 191, 198 (4th Cir. 2018), cert. denied, No. 18-7133, 2019 WL 660062 (U.S. Feb. 19, 2019).

         Here, the indictment tracks the language of the statutes charged. Defendant argues, however, that this Court should dismiss the indictment because the videos he created do not constitute child pornography as a matter of law. Defendant's argument that the videos do not constitute child pornography appears to be an attempt to challenge the sufficiency of the evidence. Because such challenges cannot be raised before trial, the motion is denied. “There is no such thing as a motion for summary judgment in a criminal case.” Russell v. United States, 369 U.S. 749, 791 (1962) (Harlan, J., dissenting). See, e.g., United States v. Alfonso, 143 F.3d 772, 776-77 (2d Cir. 1998) (stating that “the sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss an indictment”).

         Rule 12(b) of the Federal Rules of Criminal Procedure limits pretrial challenges to indictments to those that “the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). Indeed, the Supreme Court has established that “a defense [under Rule 12] is . . . ‘capable of determination'” only “if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.” United States v. Covington, 395 U.S. 57, 60 (1969). Accordingly, it is the jury's province to determine whether the videos underlying a child pornography indictment depict a child engaged in “sexually explicit conduct, ” within the meaning of federal law. See 18 U.S.C. § 2256(2)(A); see generally United States v. Frabizio, 459 F.3d 80, 85 (1st Cir. 2006) (stating that “whether a given depiction is lascivious is a question of fact for the jury”); United States v. Wallenfang, 568 F.3d 649, 658 (8th Cir. 2009) (stating that the trier of fact determines the sexual nature, lewdness, or lasciviousness of an image); United States v. Branton, No. 14-50, 2014 WL 3887403, at *4 (W.D. La. Aug. 7, 2014) (where the court denied the defendant's motion to dismiss the indictment on the basis that the images did not qualify as child pornography because it was “not a legal question appropriate for determination at this time, but instead challenges the sufficiency of the evidence”). Defendant's attempt to remove from the jury the determination of whether his videos depict sexually explicit conduct-and with it, the ultimate question of his innocence or guilt-fails.[3]

         Finally, Defendant's argument that the files do not meet the statutory definition of child pornography is not dispositive on Counts One, Two, Four, and Five because the indictment also charges Defendant with attempting to use the minors engaging in sexually explicit conduct for the purpose of the visual depiction. Because the Government included attempt as a theory of conviction, it does not have to show Defendant actually created child pornography. The Government must show only that he had the culpable intent to commit the crimes and took a substantial step towards creating child pornography. United States v. Engle, 676 F.3d 405, 41920 (4th Cir. 2012); see also United States v. Johnson, 639 F.3d 433, 440-41 (8th Cir. 2011) (reversing a district court's grant of a motion for judgment of acquittal following a jury conviction of the defendant for attempted production of child pornography under Section 2251(a), emphasizing that the prosecution charged the defendant under an attempt theory); United States v. Buculei, 262 F.3d 322, 328 (4th Cir. 2001) (finding the fact that the defendant “was unsuccessful in his attempt to actually produce a visual depiction of sexually explicit conduct” did not require acquittal). Given Defendant's propensity to engage in sexually inappropriate behavior with those he coached, there is clearly sufficient evidence that the jury could infer that his intent was to create child pornography when he placed a camera in the bathroom with full knowledge that minors would be showering in there. In sum, for the reasons stated, Defendant's motion to dismiss the indictment is denied.

         b. Defendant's Request for a ...


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