photographs themselves which is not easily conveyed in a short, verbal description. The court finds that with respect to the photographs in Beach Boys No. 2, the government did not produce substantial evidence from which the jury could conclude beyond a reasonable doubt that those photographs were visual depictions of a lascivious exhibition of the genitals or pubic area.
D. Proof of Age
In order to find the defendant guilty of transporting child pornography, the jury had to determine not only that the pictures in Beach Boys No. 2 depicted a male engaged in explicit sexual conduct, but that the male was a minor, i.e., under eighteen years of age. 18 U.S.C. §§ 2252(a)(1)(A), 2256(1). The evidence which the jury had to consider on age consisted of Feltman's testimony at trial. In describing the photographs in Beach Boys No. 2, Feltman stated: "The boy was approximately 14, 15 years old." See Trial Testimony, supra. The court can find no other evidence from which the jury could reasonably infer the age of the subject male. On the F.B.I. surveillance tape and in his testimony, Feltman stated that the subject had a partial erection. He also stated on the tape that the subject was "pretty hairy, though, God, but not just much under the arm." From those descriptive details, the jury could not reasonably infer that the subject was a minor, since they are sexual characteristics which might appear in individuals under or over the age of eighteen. Therefore, the only proof of age in this case is Feltman's testimony that the boy depicted was "approximately 14, 15 years old." The court must decide whether this was substantial evidence that the male depicted in Beach Boys No. 2 was less than eighteen years of age.
The government can prove the age of an individual in a photograph in a number of ways. First, the individual himself, or someone who has knowledge of his age, can testify as to the individual's age at the time the photograph was taken. Second, an expert, such as a pediatrician, can analyze the photograph and give an expert opinion as to the age of the individual. In fact, the government employed a pediatrician to establish the ages of minors depicted in over 200 photographs in United States v. Nolan, 818 F.2d 1015, 1017 (1st Cir. 1987), even though the photographs were also available for the court's inspection.
Third, the jury can examine the photographs in question and determine for itself whether the individual is under eighteen years of age. In this case, a lay witness who had seen the photographs gave his opinion of the individual's approximate age.
To return to the hypothetical "easy case" discussed above, if a witness describes a depiction of a child clearly engaged in bestiality and states that based on his personal experience the child was approximately five years old, this might provide the jury with a basis to conclude that the statute had been violated. The witness might be able to convey the characteristics of the child depicted and explain why, based on the witness' normal observations of individuals of different ages, these characteristics were those of a toddler and not of a teenager. It is conceivable that a lay witness can perceive the clear differences between a child in the earliest years of life and a young adult aged eighteen. Those differences are also within the common experiences of the jurors and they can evaluate the testimony accordingly.
In this case, the witness did not have independent knowledge of the age of the male depicted in Beach Boys No. 2. In the absence of the photographs, no expert could be called to evaluate the age of the subject. The jurors could not examine the photographs in order to form their own opinion of age. Instead, Feltman testified as to the "approximate" age of the subject. No basis was given for the formation of this opinion. The jury was left to speculate as to whether Feltman was correct or incorrect in his assessment of age. Since he testified as to "approximate" age, they were also left to speculate as to whether his estimate erred on the low or the high side. The evidence submitted on age does not even conclusively state that the subject was under eighteen years of age.
When the individual depicted may well be in his late teens, proof of age becomes critical. The evidence regarding the age of the male depicted in Beach Boys No. 2 was scant and speculative. It did not provide the jury with a sufficient basis upon which to conclude beyond a reasonable doubt that the photographs depicted an individual under eighteen years of age. The evidence presented did not sufficiently compensate for the absence of the photographs themselves.
E. Determination of Motion for a New Trial Pursuant To Rule 29
Federal Rule of Criminal Procedure 29(d) directs this court, subsequent to its granting of defendant's motion for a judgment of acquittal, to "determine whether any motion for a new trial should be granted if the judgment of acquittal is thereafter vacated or reversed, specifying the grounds for such determination." Fed.R.Crim.P. 29(d). Federal Rule of Criminal Procedure 33 empowers the court to order a new trial "if required by the interests of justice."
A motion for new trial can be based on the grounds that the verdict was either against the weight of the evidence or that the court or prosecutor committed an error that substantially affects the rights of the defendant. United States v. Simms, 508 F. Supp. 1188, 1202 (D. La. 1980). Where the motion is based on the weight of the evidence, the trial court has broad power to weigh the evidence and to consider the credibility of witnesses. Id.; United States v. Phifer, 400 F. Supp. 719, 722 (E.D. Pa. 1975), aff'd, 532 F.2d 747 (3d Cir. 1976); United States v. Caramandi, 415 F. Supp. 443, 445 (E.D. Pa.) aff'd mem. 538 F.2d 321 (3d Cir. 1976); see also United States v. Gross, 375 F. Supp. 971, 973 (D.N.J.), aff'd, 511 F.2d 910 (3d Cir. 1974), cert. denied, 423 U.S. 924, 46 L. Ed. 2d 249, 96 S. Ct. 266 (1975); United States v. Martinez, 763 F.2d 1297, 1312-13 (11th Cir. 1985); Cf. United States v. Clark, 294 F. Supp. 1108, 1111 (W.D. Pa.), aff'd, 425 F.2d 827 (3d Cir. 1970), cert. denied, 400 U.S. 820, 27 L. Ed. 2d 48, 91 S. Ct. 38 (1970) (evidence must be viewed in light most favorable to prosecution); United States v. Fluellen, 396 F. Supp. 1168 (E.D. Pa. 1975), aff'd mem., 530 F.2d 965 (3d Cir. 1976) (government entitled to have all reasonable inferences resolved in its favor). To protect the interest of justice, the court should evaluate the evidence objectively. Caramandi, 415 F. Supp. at 445. If the court finds that the verdict is contrary to the evidence, or to its weight, and that a miscarriage of justice resulted, the court may then set aside the verdict and grant a new trial. Phifer, 400 F. Supp. at 722; Simms, 508 F. Supp. at 1202.
As previously discussed, the evidence presented by the prosecution is not sufficient to provide the jury with a basis to conclude beyond a reasonable doubt that the pictures in Beach Boys No. 2 depicted a boy under the age of 18 years engaging in sexually explicit conduct in violation of section 2252. For the purposes of a Rule 29 motion for judgment of acquittal, the court is required to view the evidence in a light most favorable to the government. However, under Rule 33, a motion for new trial may be granted if required in the "interest of justice." Rule 33, therefore, does not require the court to decide the matter giving all inferences and benefits to the government. See Simms, 508 F. Supp. at 1202. Thus, under this significantly broader standard, defendant is entitled to a new trial. The jury could not reasonably conclude from the evidence that the picture in Beach Boys No. 2 contained a lascivious exhibition of the genitals or pubic area. Mr. Feltman's testimony did not provide the necessary details for the jury to evaluate the lasciviousness of the photo, nor did his testimony establish that the child in the photo was clearly under 18 years of age.
Defendant's motion for new trial can also be granted on alternative grounds. Defendant contends that the evidence heard by the jury with respect to Count One, which the court dismissed at the close of the government's case, prejudiced the jurors against Villard when they considered the charges in Counts Two and Three. Defendant argues that because the jury heard testimony that defendant enjoyed viewing young males in the nude, the jury inferred that defendant was a pedophile. Further, defendant contends that the jury concluded that the male depicted in Beach Boys No. 2 was a minor because of the evidence relating to Count One.
The government argues that the evidence concerning Count One did not substantially prejudice defendant. The government contends that the prejudice to defendant is not substantial for three reasons: first, the evidence with regard to Count One was not related to Counts Two and Three; second, the government and the court limited the testimony of the minor to reduce the amount of prejudice; and third "if the testimony and evidence was so prejudicial, the jury should have convicted defendant of all the depictions in Counts 2 and 3." Brief by Government at 18.
Although Count One may not have been directly related to Counts Two and Three, a substantial risk of prejudice existed from the Count One testimony. Because the defendant enjoyed viewing the pictures in Beach Boys No. 2, the evidence used to prove Count One, which inferred that Villard was a pedophile, reasonably contributed to the inference that the pictures were lascivious. The fact that the court limited the testimony did not curb these inferences. In addition, it does not logically follow that the jury should have convicted defendant of all the depictions if substantial prejudice occurred from Count One. The jury viewed two pictures, including a photograph of a young male with a full erection. They determined that the pictures viewed did not contain a lascivious exhibition of the genitals or pubic area of a minor. Yet, the jury determined that the picture in Beach Boys No. 2, which contained a young male of indeterminate age with a "partial erection," contained a lascivious exhibition of the genitals or pubic area of a minor. The jury had to evaluate that picture without seeing it and had to rely on the description by Feltman. To evaluate the lasciviousness of the photograph, the jury had to draw inferences from the evidence produced at trial. The evidence included testimony that is related only to Count One, which inferred that defendant gained pleasure from viewing nude pictures of young men. This court cannot discount the impact of this evidence on the minds of the jurors and finds that the prejudicial affect of the evidence regarding Count One is sufficient to warrant a new trial.
For the foregoing reasons, defendant's motion for the court to enter a judgment of acquittal with respect to Counts Two and Three is granted. Defendant's motion for a new trial is granted.
An appropriate order will be entered.
ORDER-November 29, 1988, Filed and Entered
For the reasons stated in this court's opinion filed even date;
IT IS on this 29th day of November, 1988 ORDERED that defendant's motion for the court to enter a judgment of acquittal on Counts Two and Three is GRANTED; and
IT IS FURTHER ORDERED that defendant's motion in the alternative for a new trial is GRANTED.