Monday, April 24th, 2023

(1) Evidence was sufficient to prove a violation of 18 U.S.C. § 2251(a) — which prohibits using a minor to engage in sexually explicit conduct to produce a visual depiction of that conduct — when the defendant created a video showing a fully clothed, sleeping teenager and the defendant (nearby) engaging in conduct with himself. (2) Also, a 5-level sentencing enhancement, for engaging in a “pattern of activity” involving “prohibited sexual conduct,” was proper — under U.S.S.G. § 4B1.5(b)(1) — based on the offense of conviction and proof (by a preponderance) of just one other prohibited act. (3) Finally, a 70-year prison sentence, the Circuit holds. isn’t substantively unreasonable. United States v. Osuba, No. 20-3322, __ F.4th ____ (2d Cir. Apr. 17, 2023) (C.J.J.’s Calabresi, Park, Nardini).

I. The sufficiency of the evidence to prove the production count: 18 U.S.C. § 2251(a)

Appellant challenged the sufficiency of the evidence supporting his conviction, after a jury trial, of violating 18 U.S.C. §  2251(a), which mandates a minimum 15-year prison term for: “Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct . . .”

Back in 2018, Appellant “was in the living room of his girlfriend’s house, talking to someone over Kik Messenger, an instant-messaging app.” See Opinion (“Op”) at 4. While “[h]is girlfriend’s seventeen-year-old daughter was sleeping, fully clothed, on the couch in the same room, with her face turned away from him[,]” he “turned on his camera and recorded two short videos” that “show him masturbating close to the minor—first sitting or lying near the couch, then standing over the minor and ejaculating toward her. He was ‘getting off,’ he later said, to ‘the image of  the teenage girl on the couch.’ ‘I came on her,’ he told the other Kik user, attaching the videos.” Op at 4  (record citations and footnote omitted)).

The question before the Circuit was “whether [Appellant] used the minor to engage in sexually explicit conduct when he filmed himself masturbating toward her.” Op at 11. “[S]exually explicit conduct” includes “actual or simulated” “masturbation” and actual or simulated “lascivious exhibition of the anus, genitals, or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(iii), (v).

The Circuit construed the relevant statutes (Op at 11-18) as providing that “a minor may be used to engage in sexually explicit conduct passively.” Op at 18. And, it stated, “physical contact is not a necessary component of passive engagement.” Op at 18. The Circuit thus held: “Even without physical contact, Osuba’s conduct was so directed toward the minor that it engaged her, albeit passively, in sexually explicit conduct.” Id. According to the Circuit, “the minor’s passive involvement as the intended recipient of Osuba’s actions suffices to constitute her ‘engagement’ under § 2251(a).” Op at 20.

II. The 5-level enhancement of Sentencing Guidelines § 4B1.5(b)(1) — for engaging in a “pattern of activity involving prohibited sexual conduct” —  can rest on the offense of conviction and a finding of just one other prohibited act.

Sentencing Guidelines § 4B1.5(b)(1) provides a 5-level increase in offense level when “the defendant’s instant offense of conviction is a covered sex crime . . . and the defendant engaged in a pattern of activity involving prohibited sexual conduct.” A “covered sex crime” includes a violation of 18 U.S.C. § 2251(a). See U.S.S.G. § 4B1.5 cmt.  n.2. And “prohibited sexual  conduct” includes offenses under chapters 117, 109A, and 110, of Title 18 and “state offenses and other conduct that would have fallen under those chapters had it taken place in an area under federal jurisdiction.” Op at 24 n.8 (citing § 4B1.5 application n.4(A) and 18 U.S.C. § 2426(b)(1)).

The Guideline provides that a defendant has engaged in a “pattern of activity” if “on at least two separate occasions, [the defendant] engaged in prohibited sexual conduct with a minor.” U.S.S.G. § 4B1.5 cmt. n.4(B)(i). The Circuit has held that at least one of those acts “‘can be the crime of conviction.’” Op at 24-25 (quoting United States v. Broxmeyer, 699 F.3d 265, 286 (2d Cir. 2012)).

Here, Appellant’s challenge to the 5-level sentencing enhancement was “unpreserved,” and the Circuit reviewed it “for plain error.” Op at 22.

The district court relied on the (two) videos underlying the instant production conviction and on its conclusion that the defendant had sexually abused “his four-year-old daughter, E[.]” o at 4-5,7-9, 25. The evidence of the alleged abuse was as follows: “In one conversation, with Lisbet Fjostad, a woman he met on the app,” Osuba “ claimed to have sexually abused his four-year-old daughter, E, on multiple occasions, giving graphic details of his physical contact with her genitalia.” In a “Kik conversation … with an undercover officer, Osuba recounted yet more abuse of E, again describing the same sort of direct sexual contact.” Op at 4-5. And “E confirmed Osuba’s claims when she told investigators about episodes of sexual contact with Osuba, the details of which tracked Osuba’s messages to Fjostad. And E’s brother partially corroborated E’s statements when he described Osuba’s use of a device that matched the description given by E.” Op at 25.

However, in the sentencing memorandum, defense counsel presented “a copy of a 2018 child protective services report stating that  allegations Osuba had sexually abused E were ‘unsubstantiated.’” Op at 7. The report showed that “the agency had found no credible evidence that a child was abused or maltreated.” Op at 7. And Appellant told the court “that the Kik conversations reflected fantasies and not actual events.” Op at 8. But the Circuit held that “the mere presence of evidence pointing in both directions does not establish clear error, because when there are two permissible views of the evidence, the district court’s choice between them cannot be deemed clearly erroneous.” Op at 26 (citation and internal quotation marks omitted).

Finally, the district court’s “failure to cite specific statutory provisions” wasn’t plain error, the Second Circuit states, “as the uncharged conduct was plainly prohibited by New York law, which defines first-degree sexual abuse to include ‘sexual contact’ with someone ‘less than eleven years old.’ N.Y. Penal Law § 130.65(3).” Op at 30.

III. The Circuit concludes a  70-year prison sentence isn’t substantively unreasonable.

A jury convicted Appellant of one count of 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) (Count One); one count of distributing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A), 2252A(b)(1), and 2256(8)(A) (Count Two); and one count of possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and 2256(8)(A) (Count Three).  Op at 5-6.

The district court imposed a total sentence of 70 years’ imprisonment: 360 months (30 years)  on Count One;  240 months (20 years) on Count Two; and 240 months (20 years) on Count Three, “to run consecutively for a total of 840 months of imprisonment.” Op at 8-9.

The Circuit states that the defendant “received a within-Guidelines, statutory-maximum sentence of 70 years of imprisonment.” Op at 31. After a brief discussion, it holds that the 70-year term isn’t substantively unreasonable. Op at 30-34.

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