Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 06 CR 017-John Daniel Tinder, Judge.
The opinion of the court was delivered by: Kanne, Circuit Judge.
Before EASTERBROOK, Chief Judge, and KANNE and WILLIAMS, Circuit Judges.
Dick Noel was charged with producing and possessing child pornography in violation of 18 U.S.C. §§ 2251(a) and 2252(a)(4)(B). A jury found Noel guilty on all counts, and on June 1, 2007, the district court sentenced Noel to eighty years' imprisonment to be followed by a lifetime of supervised release. Noel now appeals his conviction, arguing that (1) the district court erred in allowing Indiana State Police Detective Jennifer Barnes to testify that certain images in evidence met the federal definition of child pornography, and (2) the court's jury instruction regarding the definition of a "lascivious exhibition of the genitals," which was derived from United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), was confusing to the jury. Noel also claims that his sentence was unreasonable and that the district judge failed to personally address him and offer him the opportunity to allocute. Although we find the government's approach in submitting certain evidence at trial troubling, none of the errors below require reversal of Noel's conviction or sentence.
This case represents every parent's worst nightmare. Russell Beauchamp and his wife, Lori Beedi, consciously decided to restrict the care of their young son, "H," only to family members. In keeping with that decision, Beauchamp trusted his step-brother Dick Noel to care for H periodically from the time H was two years old. Noel often supervised H overnight, including every Friday. As the years progressed, Beauchamp and Beedi divorced, and Noel's role in H's life increased. For example, Noel would often care for H when Beauchamp was working late, and he provided assistance as H healed from a broken arm suffered in July 2005.
But a police investigation later revealed that Noel was not worthy of the trust that Beauchamp had bestowed. On July 31, 2005, Detective Brian Broughton of the Martin County, Florida, Sheriff's Department began investigating Philip Vanderhoff for crimes against children. A search of Vanderhoff's computer revealed logs from chat sessions with a person with the screen name of "dick_noel2003." In those conversations, "dick_noel2003" referred to a "BL," meaning "boy lover," and certain "pics." He also described his relationship with a boy named H; this conversation included a description of various sexual encounters.*fn1
The screen name was registered to a Dick Noel in Middletown, Indiana, whose personal information matched that of the appellant. Broughton referred this information to the Indiana Internet Crimes Against Children Task Force. Authorities searched Noel's house in August 2005, and seized several pieces of computer media. The hard drive of Noel's computer and several computer disks contained photographs organized into many folders, including one labeled "H," which held photos that portrayed H nude and asleep. The computer media also contained numerous photos of other minors engaged in sexually explicit conduct.
A grand jury returned a four-count indictment against Noel on January 25, 2006. Counts one through three charged Noel with production of child pornography in violation of 18 U.S.C. § 2251(a). These three counts were based on ten allegedly pornographic photos of H that investigators had found during the search of Noel's home. Count four charged Noel with possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). This count was based not only on the ten pornographic photos of H, but also on numerous photos of other minors. A jury trial commenced on March 12, 2007.
As one of its primary witnesses, the government called Jennifer Barnes, a detective with the Indiana State Police who had conducted the forensic examination on the computer media seized from Noel's residence. Barnes explained that she found numerous images that met the federal definition of child pornography organized in multiple folders on Noel's computer system. She then described the government's exhibits, explaining how she compiled them and how they related to each of the charged counts.
Barnes testified that the government's Exhibit Nine contained all 246 images of H that were found on Noel's computer. These included not only the ten charged photos, but also numerous photos that were not pornographic, such as clothed photos of H in outdoor settings. These photos were all admitted into evidence without objection.
Exhibits One, Two, and Three contained the photos that formed the basis for counts one through three against Noel, respectively. Barnes told the jury that these were duplicates of certain photos that were also contained in Exhibit Nine. The prosecution asked Barnes: "And these were, in your opinion, although the jury will be making that determination, pictures that fit within federal law?" Barnes responded affirmatively.
Barnes stated that the government's Exhibit Four contained the photos on Noel's computer that met the federal definition of child pornography. She described the folders on Noel's computer from which the photos came and informed the jury that those folders also contained photos of child pornography that were not present in the exhibits. She later explained to the jury that Exhibit Four contained all photos relevant to count four, the possession charge, including copies of the photos of H in Exhibits One through Three. All in all, Barnes opined at least six times during her testimony that the charged photos were pornographic.
At the close of evidence, the court instructed the jury regarding the definition of "lascivious exhibition of the genitals" in the context of child pornography, using the factors articulated in Dost, 636 F. Supp. at 832. During the government's closing argument, the prosecution described some of the photos and argued, using the Dost factors, that they each fell within the definition of child pornography. Defense counsel chose not to focus on the photos, telling the jury:
I'm going to give you some good news. You are not going to have to look at those pictures again in order to make up your minds about this case, because people, reasonable people, could probably decide that those are minors and that that's pornography. Probably could, and I'm not going to argue that. That's not our issue.
Instead, defense counsel, after acknowledging that the photos were "horrible," argued that there was not enough evidence to find that Noel had produced or knowingly possessed them. She then reiterated: "You don't need to look at these pictures again. I mean, you certainly can if you want to, but from our perspective, you don't need to."
Defense counsel also criticized the police investigation, claiming that the detectives failed to inquire into who owned and created the pornography. As a part of this claim, counsel stated: "Where they were looking for pornography, they found pornography and they were done."
The jury returned a guilty verdict on all counts. The district court held a sentencing hearing on June 1, 2007. At the outset of that hearing, the judge stated:
And I'll now hear first from the government with respect to its argument regarding sentencing, and then I'll hear from the defense. And of course, Ms. Jensen, as part of the defense presentation, your client, Mr. Noel, has the right to speak; that is, to say whatever he wants to say to help me in determining what the sentence should be.
After the government's presentation, the district court asked defense counsel, "Miss Jensen, do you have a presentation you'd like to make regarding sentencing and would your client like to address me?"
Defense counsel began by reading a letter that Noel had prepared. She explained that Noel had provided her with the letter too late for the probation officer to include it in the PSR, but she nonetheless felt it might be appropriate to share with the court.
In the letter, Noel never admitted to his conduct. The letter stated that Noel was not aware of the material on his computer and described how his trust had been betrayed by an unnamed friend.*fn2 Noel wrote: "He had my computer, as my mentor, set up the passwords, he even chatted under my chat name. He had the run of the house three to four days a week." Noel explained that other minors and Beauchamp himself had stayed at his house and that "[t]hey also witnessed that nothing questionable ever happened."
Nonetheless, Noel apologized in the letter, stating, "I do want to apologize for all the pain this has caused. I grieve for all of my family who felt this trust was betrayed by me. I feel their pain very deeply." He explained that words failed to express his "deep love" for H, and he said that "when I think that our wonderful relationship has now had the shadow cast on it, it causes my very soul to hurt. He alone, other than myself, knows the purity of our ten-year relationship." The letter concluded by requesting a merciful sentence.
After defense counsel's presentation, the district court considered the letter but ultimately concluded that an acceptance of responsibility adjustment was inappropriate.*fn3 The district court determined that the letter was inconsistent with statements Noel made to law enforcement and was "a denial of the very things that would constitute acceptance of responsibility."
The district court applied a base offense level of 48, with a criminal history level of I. This resulted in a recom-mended guidelines sentence of the statutory maximum-one hundred years' imprisonment.*fn4 After considering the sentencing factors enumerated in 18 U.S.C. § 3553(a), the district court imposed a below-guidelines sentence of eighty years' imprisonment-twenty-five years for each of counts one through three, and five years for count four, to be served consecutively.
Noel challenges his conviction on appeal, claiming that the district court erred in allowing certain aspects of Barnes's testimony and in instructing the jury based on the Dost factors. He also appeals his sentence as unreasonable and argues that he was not given the opportunity to allocute. We discuss each issue in turn.
A. Noel's Challenges to His Conviction
Noel claims that Detective Barnes rendered an impermissible legal conclusion that the government's exhibits met the federal definition of child pornography. He also argues that this error was exacerbated by the district court's purportedly "muddled and confusing" jury instruction defining "lascivious exhibition of the genitals" using the factors described in Dost, 636 F. Supp. at 832. We find error in Barnes's testimony but not the jury instructions. Because the error did not affect Noel's substantial rights, however, his conviction will be affirmed.
1. Testimony of Detective Barnes
At Noel's trial, Barnes testified repeatedly that the images on Noel's computer met the federal definition of child pornography. She provided no explanation for this opinion, but instead offered only conclusory state-ments. We find the government's explanation for this testimony troubling and agree with Noel that it was improper.
Under the Federal Rules of Evidence, testimony is not objectionable solely "because it embraces an ultimate issue to be decided by the trier of fact." Fed. R. Evid. 704(a); see also United States v. Wantuch, 525 F.3d 505, 513 (7th Cir. 2008). But this rule "does not lower the bars so as to admit all opinions." Fed. R. Evid. 704 advisory committee's note. The evidence must be otherwise admissible as lay testimony under Rule 701, United States v. Baskes, 649 F.2d 471, 478-79 (7th Cir. 1980), or expert testimony under Rule 702, United States v. Scavo, 593 F.2d 837, 844 (8th Cir. 1979). Most importantly for our purposes, the testimony must be helpful to the trier of fact under either rule. Fed. R. Evid. 704 advisory committee's note; see also Fed. R. Evid. 701(b), 702.
We have held repeatedly that lay testimony offering a legal conclusion is inadmissible because it is not helpful to the jury, as required by Rule 701(b). See, e.g., Wantuch, 525 F.3d at 514 (holding that the question of whether the defendant knew his actions were legal "demanded a conclusion as to the legality of [the defendant's] conduct, which is unhelpful to the jury under Rule 701"); United States v. Espino, 32 F.3d 253, 257 (7th Cir. 1994) ("[T]he question posed to Espino, '[Y]ou're admitting the conspiracy, aren't you,' required a conclusion regarding the legal implications of his conduct. Espino's lay answer to this question was therefore objectionable as being unhelpful opinion testimony and should have been excluded." (second alteration in original)). This is because a lay witness's purpose is to inform the jury what is in the evidence, not to tell it what inferences to draw from that evidence. See United States v. Grinage, 390 F.3d 746, 750 (2d Cir. 2004). Once the evidence is presented, the jury is capable of examining it and determining whether it supports a conviction; it does not need lay testimony to assist in making that determination. Cf. Wantuch, 525 F.3d at 514 ("The jury was just as capable as [the witness] of inferring that Wantuch knew he was committing a crime, without [the witness opining] as to whether Wantuch was aware that his conduct was illegal.").
Barnes's testimony that the photos found in Noel's home met the federal definition of child pornography amounted to nothing more than a statement that the photos were illegal. Given proper instructions, the jury was capable of making this determination on its own. This testimony was ...