United States v. Moran

57 F.4th 977

UNITED STATES of America, Plaintiff-Appellee,

v.Colum Patrick MORAN, Jr., a.k.a. Emily lover, a.k.a. emilylover@aol.com, Defendant-Appellant.

No. 21-12573

United States Court of Appeals, Eleventh Circuit.

Filed: January 13, 2023

Sara C. Sweeney, U.S. Attorney's Office, Orlando, FL, U.S. Attorney Service - Middle District of Florida, U.S. Attorney, U.S. Attorney's Office, Tampa, FL, for Plaintiff-Appellee.

Melissa Fussell, Assistant Federal Public Defender, Federal Public Defender's Office, Orlando, FL, Maurice C. Grant, II, Federal Public Defender's Office, Jacksonville, FL, Alec Fitzgerald Hall, Federal Public Defender's Office, Tampa, FL, for Defendant-Appellant.

Before Jordan, Rosenbaum, and Newsom, Circuit Judges.

Newsom, Circuit Judge:

Colum Moran, a collector of child pornography, commented on several "mom blog" posts asking mothers to display sexually explicit images of their young daughters. We must decide whether Moran's requests constitute criminal attempts to produce child pornography under 18 U.S.C. § 2251(a) and (e).

Moran contends, in essence, that his requests—posted on otherwise-wholesome mom-blog sites—were so unlikely to succeed that they can't support attempt liability. In particular, he makes three related arguments. First, he asserts that the unlikelihood of success negates his intent to complete the production crime. Second, he says that because he couldn't have known—or even thought—that his plot would succeed, it can't be shown that he "kn[ew] or ha[d] reason to know that such visual depiction w[ould] be transported or transmitted using any means or facility of interstate or foreign commerce," as the production statute requires. Finally, he argues that his verbal requests were too insignificant to constitute the "substantial step" necessary to prove attempt.

We reject all three of Moran's contentions. First, the sheer unlikelihood that Moran's requests to the mom-bloggers would result in the production of child pornography does not negate his desire—and thus his intent—to produce child pornography, and there is in any event plenty of evidence, even beyond the messages themselves, that he intended to do so. Second, contrary to Moran's suggestion, § 2251(a) ’s interstate-nexus element does not require that a defendant know ex ante that his plot will succeed—only (as relevant here) that if it succeeds, the forbidden images will travel in interstate commerce. Finally, Moran's substantial-step argument, which he failed to clearly present to the district court, fails under plain-error review.

I

"Mom blogs" are websites on which mothers—and likely some fathers—share parenting stories and tips. They are chock-full of family-oriented and family-friendly content. One illustrative site, "Your Modern Family," is authored and maintained by a mother and retired teacher and includes sections about kids’ activities, parenting tips, and marriage and home-management advice.¹ Posts range from ideas for playing with sidewalk chalk to spring-cleaning suggestions—the latter sponsored by a soap company—to tips for the kids’ first day of school.² The point—Moran's point—is that mom-bloggers aren't likely to post child pornography on their sites.

When Moran left a disturbing comment on one such blog, authorities launched an investigation. Moran had complimented a mom-blogger's young daughter's swimsuit and graphically described how he liked to perform a particular sex act with "pretty" "little girl[s]" in swimsuits like hers. Unbeknownst to Moran, that blogger's husband (and the little girl's father) was an FBI agent.

The investigation that ensued revealed that Moran, using the handle "Emily lover" at Emilylover@aol.com, had on three occasions asked other mom-bloggers to post pornographic pictures of their children. Warning: Moran's messages are vile. But to fairly assess one of his main arguments—namely, that the messages, while harassing, weren't really attempts to produce child pornography—we must analyze his comments in some detail.

Moran's first request responded to a mother's blog post about her five-year-old daughter learning to take photographs. Moran sent a comment asking the mother to have the girl—whom we'll just call "A "—take pornographic pictures of herself:

She did a great job with these! The next time [A ] wants to take pictures, you should suggest something fun. Have [A ] take all her clothes off and take pictures of herself in the mirror. Especially when she's sitting in front of the mirror with her legs spread wide open so we can see her vagina. Maybe she could try spreading her vagina lips apart with her fingers so she can get a good picture of her little pink hole. My niece loves to have her picture taken while she uses the head of her toothbrush inside her vagina. If [A ] wants to try it, my niece likes to lick the white cream from the brush when she's done. [A ] would look so cute with her tasty girl goo smeared all over her smiling mouth

Doc. 128-2.

Not quite a year later, Moran sent a second request to the same blogger, also about A . This time, Moran responded to a post about the now-six-year-old's morning routine:

Great post! But the pictures I would most like to see are missing. [T]hose would be the ones of [A ] doing her "morning stuff". In particular, some pictures of her on the toilet would be awesome. I'd like to see her panties around her ankles, with her legs spread wide enough to see the pee dribbling from between her vagina lips. I'd also like a couple of them to show her beautiful smiling face, and a couple of good closeups of her vagina

Doc. 128-4. Moran later suggested that A ’s mother buy her a sex toy for her 7th birthday—and even provided a link to facilitate the purchase.

Moran sent his third request to a different blogger, a mother who had recently advertised flushable baby wipes on Instagram. In a comment on one of the mother's blog posts, Moran referenced the Instagram ad and the mother's twin three-year-old daughters, whom we'll call "B " and "C ":

I'm really interested in the flushable wipes you were talking about on IG [Instagram]! Can you please post some pictures or a video of [B ] and [C ] using them? I'm curious to see how easily their little fingers can navigate their crotches with them and how well they clean the girl's vaginas. Thanks

Doc. 128-7.

Federal law-enforcement officers traced the IP address from which Moran had sent all three messages to his residence. When officers searched Moran's apartment, they seized his laptop and cell phone, which together contained more than 1,000 images of child pornography—many of toddlers. Forensic computer evidence demonstrated that Moran had specifically searched for pornography involving seven- and eight-year-olds. It also revealed since-deleted file folders called "Babies" and "Potty time," as well as files with names like "Toilet_Girls" and "8yo school girl." Separately, investigators found 24 pairs of children's underwear in Moran's house—even though no children lived there. When officers interviewed Moran during the search, he denied ever posting messages as "Emily lover."

The government charged Moran with one count of possession of child pornography, see 18 U.S.C. § 2252(a)(4)(B) and (b)(2), and three counts of attempted production of child pornography, see id. § 2251(a) and (e). The jury convicted Moran on all four counts, and the judge sentenced Moran to 64 years’ imprisonment.

II

Moran now appeals the attempted-production convictions. In relevant part, the production statute makes it unlawful for any person to:

employ[ ], use[ ], persuade[ ], induce[ ], entice[ ], or coerce[ ] any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct ... if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce.

Id. § 2251(a). Subsection (e) of the same statute provides for the punishment of "[a]ny individual who ... attempts ... to violate" § 2251(a). Moran challenges his attempted-production convictions on three related grounds, which we will consider in turn.³

A

Moran first contends that the government can't prove a necessary element of its case—namely, that he had "the specific intent or mens rea to commit the underlying charged crimes." United States v. Yost , 479 F.3d 815, 819 (11th Cir. 2007). Here, therefore, the evidence must show that Moran intended, for instance, to "entice[ ] ... any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct" and that he "kn[ew] or ha[d] reason to know that such visual depiction w[ould] be transported or transmitted using any means or facility of interstate or foreign commerce." 18 U.S.C. § 2251(a).

Even viewing the evidence in the light most favorable to the government, Moran says, a jury couldn't conclude that he actually wanted—intended—the bloggers to post child pornography.⁴ He says so for two related reasons. First, he asserts that specific intent requires that he "at least think [success] might be plausible," Br. of Appellant at 20, and that his efforts to procure child pornography via comments on mom-blogs were almost surely destined to fail. Second, he insists that he was obviously just "internet trolling"—that is, harassing the bloggers for his own entertainment—rather than actually trying to produce child pornography. We find neither argument persuasive.

As to the first, Moran is simply mistaken. A defendant's desire alone—wholly without respect to his likelihood of success—can establish his intent. The Supreme Court has been perfectly clear about this:

[A] person who acts ... intends a result of his act ... under two quite different circumstances: (1) when he consciously desires that result, whatever the likelihood of that result happening from his conduct; and (2) when he knows that the result is practically certain to follow from his conduct,

...