A little over a decade ago, the New York Times called the Fourth Circuit Court of Appeals—which encompasses North Carolina, South Carolina, Virginia, West Virginia and Maryland—“the most aggressively conservative federal appeals courts in the nation.”


Time has its way of changing everything, including a court whose decisions in the 1990s were influenced more by conservative political ideology than the rule of law.


Obama, Clinton Appointees Changed Makeup of Court


That’s what happened to the Fourth Circuit which, over the last seven years, has gradually moved from a conservative to a more moderate rule of law.


Some will attribute the sea change to the six President Obama appointees who joined the four President Clinton appointees to create the current gender and ethnically diverse makeup of the court. We will leave it to the judicial insiders to debate this point.


What we know is that the court’s November 5, 2015 decision in United States v. Palomino-Coronado reflects a commitment to the rule of law, despite the distasteful facts of the case and knee jerk reaction most people would have sitting in judgment over an alleged child sex offender.


Fairness Difficult in Child Exploitation Crimes


There are no cases that vex judges more than those involving child sexual exploitation crimes.


19-year-old Palomino-Coronado was charged in federal district court with allegations he violated 18 U.S.C. § 2251(a) by knowingly engaging in sexual conduct with a minor for the purpose of producing a visual depiction of such conduct.  The allegations supporting the indictments claimed Palomino-Coronado committed sexual assault on a seven-year-old child in 2012. They were next-door neighbors in Laurel, Maryland.


The child victim would visit the teenager in the basement of his home where they would play games, some of them reportedly sexual games. This led to a criminal investigation.


At the outset of the investigation, the child victim gave conflicting statements to the police about the sexual games. She said the pair had “sexual contact” but later said they had not.


Medical evidence showed that the child might have been sexually active before Palomino-Coronado’s arrest, lending support to the child’s claims.


Search Warrant Finds Phone


That evidence and the statement by the child that she had sexual contact with Palomino-Coronado was enough for Prince George County detectives to get a search warrant for the teenager’s residence.


During that search, the detectives seized Palomino-Coronado’s cell phone, from which both state and FBI forensic experts were able to extract deleted and undeleted images of sexually explicit photos between an adult and a child.


The phone search also recovered thousands of legal images, including Palomino-Coronado’s face and three images of the child victim in “non-sexually explicit contexts.”


With the phone images in hand, a FBI forensic expert interviewed the child victim during which the victim identified a sexually explicit photo of an adult and a child as being her and Palomino-Coronado.


Government Over-Charges


The Government, obviously incensed by the allegations, and young age of the child, overreached and filed federal criminal charges, which would submit Palomino-Coronado to minimum 15 years, more likely 30, in the federal penitentiary.


The government used the single photo identified by the child, who had repeatedly changed her story about her relationship with Palomino-Coronado, to secure a one-count indictment of knowingly employing, using, persuading, inducting, enticing, and coercing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, conduct prohibited by 18 U.S.C. § 2251(a).


Statute Required Specific Intent in the Production of the Image


Section 2251 is an intent-specific statute. This meant the government had to prove beyond a reasonable doubt that essential element of intent; namely, that the Palomino-Coronado produced the “visual depiction” in question for the “purpose of engaging in the sexually explicit conduct,” not merely that he photographed a sexual assault.  The statute was intended to apply to individuals who committed sexual assaults on children for purposes of creating child pornography.


At Palomino-Coronado’s trial, the victim testified the defendant had touched her private parts on more than one occasion. She also identified the single sexually explicit image of the adult and child as being her and Palomino-Coronado engaged in sexual intercourse.


Police Intimated, Coerced Child Witness During Interrogation


The child victim’s testimony also revealed a dark side of police interrogations of child sex crimes victims. She testified she lied during the first police interview—that was unrecorded–because she was afraid. She identified the sexually explicit photo, she said, after a police detective told her she could not go home until she identified herself and Palomino-Coronado in the photo. The detective went so far as to take her “teddy bear” from her until she identified the photo.


An FBI child forensic expert testified that the detective’s interrogation was coercive and violated “established protocols.” The FBI agent went on to testify that, during their interview, the child victim said she had engaged in sexual conduct with the Palomino-Coronado and identified the photo.


Defense Attorney Moves for Directed Verdict


At the close of the government’s case, Palomino-Coronado’s attorney made a motion for judgment of acquittal based on insufficient evidence. The trial court denied the motion. A jury then found the defendant guilty and the court subsequently imposed a 30-year sentence.


Photo Not Enough for 2251


At the outset of its analysis, the Fourth Circuit said that in Section 2251 cases “it is simply not enough to say ‘the photo speaks for itself and for the defendant and that is enough.’”


The federal circuits have rather uniformly held that while a defendant must engage in sexually explicit conduct with a specific intent to produce a visual depiction of such, the government does not have to prove a defendant be “single-minded in his purpose to support a conviction under § 2251.”


The Fourth Circuit noted that the Palomino-Coronado case was the first before the court challenging the sufficiency of evidence under Section 2251. The court examined how other appellate courts have examined both direct and indirect evidence to find that a defendant had a specific intent to engage in explicit sexual conduct in order to make a “visual depiction” of it.


The appeals court then reached its own conclusion:


“Here, the evidence produced at trial does not support the conclusion that Palomino-Coronado engaged in sexual activity with B.H. for the purpose of producing a picture. No direct evidence or statements indicating intent were offered. There was no testimony that Palomino-Coronado gave any instruction or direction to B.H. as part of their sexual encounter that would indicate purpose.


“All the record shows is that Palomino-Coronado had engaged in sexual activity with B.H. on more than one occasion; that he had taken several non-sexually explicit pictures of her with his cell phone in the basement; and that one sexually explicit picture was taken, in which B.H. identified herself and Palomino-Coronado as the two people depicted. Without more, these facts do not support the conclusion that Palomino-Coronado engaged in sexual activity with B.H. in order to take a picture. To hold otherwise would eliminate the specific intent requirement, turning § 2251(a) into a strict liability offense.”


Rule of Law Prevails in Tough Case


At first glance, this is a very difficult case to read and understand.  However, the rule of law did in fact prevail in the Palomino-Coronado case. That is not always so in child sex crimes cases.


The sole issue in a Section 2251(a) case is not whether a sexual assault in photographed, but whether a defendant engages in the conduct for purpose of producing the photograph. The government simply did not prove that essential element in the Palomino-Coronado case.


Sexual Assault of a Child is a State Case, Not Federal


We applaud the Fourth Circuit for having the judicial courage to apply the rule of law in this very difficult case, forcing the government to carry its burden of proof.


It should be mentioned that the appeals court did note that Mr. Palomino now faces criminal charges in state court, most likely extremely serious state criminal charges, which is where this case should have been filed in the first place.