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United States v. Silva

United States Court of Appeals, First Circuit

July 20, 2015

GERALD J. SILVA, Defendant, Appellant

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[Copyrighted Material Omitted]

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Robert B. Mann, with whom Mann and Mitchell was on brief, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.

Before Lynch, Kayatta, and Barron, Circuit Judges.


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BARRON, Circuit Judge.

Gerald Silva raises a number of challenges to his convictions for receipt and possession of child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (4). Silva first contends that the child pornography statutes under which he was charged were unconstitutionally vague. He then argues that the District Court should have dismissed one count of the indictment for which, he contends, there was no evidence submitted to the grand jury. He also argues that the District Court abused its discretion in barring the testimony of Silva's proposed expert witness and in instructing the jury. And finally, Silva argues that the District Court wrongly denied his motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29. We find no merit to any of these challenges and therefore affirm the conviction.


According to evidence offered at trial, this case arises from an investigation by Canadian police who, in cooperation with law enforcement in the United States, were investigating a company, Azov Films, due to its alleged production and distribution of materials featuring nude, young boys. Azov operated a website that offered a variety of materials, including some films produced by other companies and some Azov-produced films. A United States postal inspector testified at trial that there had been citizen complaints " in which people stated that they were selling child pornography on the website."

On May 1, 2011, Canadian authorities executed a search warrant on Azov's Toronto premises and shut down the website. Canadian law enforcement seized business records -- including customer purchase and shipping information -- and passed the records

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along to the United States Postal Inspection Service. The records listed Gerald Silva as a customer and showed that he placed twenty-two orders between October 2010 and April 2011 and bought seventy-five items, eleven of which are listed in the indictment.

Silva was charged with six counts of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) and with one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4). Silva was found guilty on all counts after a jury trial in the District of Rhode Island. He was sentenced to a 72-month term of imprisonment. He now appeals.


We begin with Silva's challenge to the constitutionality of the statute. The statutory provisions under which Silva was charged both define child pornography as " any visual depiction . . . if -- (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct." 18 U.S.C. § 2252(a)(2); see also id. § 2252(a)(4). The statute cross-referenced by these measures defines " sexually explicit conduct" to include the " lascivious exhibition of the genitals or pubic area of any person." Id. § 2256(2)(A)(v).[1]

Silva contends that " lascivious exhibition" is too vague to provide notice of what depictions fall within the definition of child pornography and to provide standards for law enforcement to prevent the arbitrary enforcement of the statute. He therefore contends that his convictions under the statutes violate his Fifth Amendment due process rights, a challenge we review de novo. United States v. Zhen Zhou Wu, 711 F.3d 1, 11-12 (1st Cir. 2013).

The Supreme Court in United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994), however, rejected a constitutional vagueness challenge to the same definitional provision of the statute. The Court described the vagueness claim raised by the defendants as " insubstantial," and adopted the reasoning of the Ninth Circuit. Id. at 78-79. The Court of Appeals had found that " '[l]ascivious' [was] no different in its meaning than 'lewd,' a commonsensical term whose constitutionality [had been] specifically upheld in" the Supreme Court's prior precedents. United States v. X-Citement Video, Inc., 982 F.2d 1285, 1288 (9th Cir. 1992) (citing Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982)); see also United States v. Frabizio, 459 F.3d 80, 85 (1st Cir. 2006) (" The courts are also in agreement that the term 'lascivious' is sufficiently well defined to provide . . . notice of what is permissible and what is impermissible." ). Silva's constitutional due process challenge is thus without merit.


Silva next challenges the District Court's denial of his motion to dismiss count seven of the indictment, which charged Silva with knowing possession of child pornography under 18 U.S.C. ยง 2252(a)(4). Silva contends the grand jury heard no evidence to support count seven and thus ...

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