United States of America v. Anthony Palomino-Coronado

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4416
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY PALOMINO-CORONADO,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:12-cr-00287-RWT-1)
Argued: September 17, 2015 Decided: November 5, 2015
Before MOTZ, KING, and GREGORY, Circuit Judges.
Reversed and vacated by published opinion. Judge Gregory wrote
the opinion, in which Judge Motz and Judge King joined.
ARGUED: Joanna Beth Silver, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Baltimore, Maryland, for Appellant. Kristi Noel
O’Malley, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.

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GREGORY, Circuit Judge:
Anthony Palomino-Coronado was convicted of knowingly
employing, using, persuading, inducing, enticing, or coercing a
minor in sexually explicit conduct, for the purpose of producing
a visual depiction of that conduct, in violation of 18 U.S.C.
§ 2251(a). On appeal, Palomino-Coronado claims that there was
insufficient evidence to convict him and that the district court
improperly denied his motion for judgment of acquittal under
Federal Rule of Criminal Procedure 29. We agree.1
I.
In the early morning hours of May 3, 2012, Prince George’s
County police officers were called to a home in Laurel,
Maryland, in response to a report of a missing seven-year-old
child. Officers eventually found the child, B.H., outside the
house next to a fence adjoining the neighbor’s yard. B.H. said
that she had been next door hanging out with a friend.
Interviews with B.H. led the police to bring her to the
hospital for a sexual assault forensic exam. Nurse Sharon
Rogers performed the exam and found that B.H.’s hymen had been
1 Palomino-Coronado further contends that the district court
erred by failing to take adequate steps to ensure that an
expert’s dual role did not prejudice or confuse the jury and
that his sentence was procedurally unreasonable, issues we do
not reach here.

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torn, indicating that it had been penetrated. Rogers also
identified an odor, redness, and irritation, which were
consistent with an infection. Rogers determined that B.H.
likely could not have gotten this type of infection from sexual
activity in the hours preceding the exam, suggesting that sexual
activity had also occurred previously. Rogers also interviewed
B.H. During the interview, B.H. said that she had been at
“Anthony’s” house that night, that she had been there about ten
times previously, and that they would spend time in his
basement. Palomino-Coronado, then nineteen years old, was
B.H.’s neighbor.
Following the exam, Detective Cleo Savoy interviewed B.H.
The two first spoke privately for about an hour and a half and
were then joined by B.H.’s guardian; at that point, Savoy began
to record the interview. During the unrecorded portion of the
interview, Savoy testified that B.H. said that she went to
Palomino-Coronado’s house, where they played games in the
basement, Palomino-Coronado kissed her, and they had sex. B.H.
also said that Palomino-Coronado took pictures. During the
recorded portion of the interview, B.H. denied having any sexual
contact with Palomino-Coronado.
On May 3, 2012, Prince George’s County detectives
interviewed Palomino-Coronado and swore out a search warrant on
his residence. The police also seized Palomino-Coronado’s cell

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phone. Later that day, a communications specialist with the
Prince George’s County Police Department extracted deleted and
undeleted images from Palomino-Coronado’s cell phone, including
one picture of a male lying on top of a paisley-patterned sheet
while vaginally penetrating a child. The extraction revealed
that this particular image had been deleted.
The FBI later conducted its own forensic image extraction
from Palomino-Coronado’s cell phone, finding the same photo of a
man penetrating a child. Other images were also recovered,
including thousands of Palomino-Coronado’s face and at least
three other images of B.H. in non-sexually explicit contexts.
On May 15, 2012, Martha Finnegan, an FBI child forensic
interview specialist, interviewed B.H. During that interview,
B.H. told Finnegan that she had had sexual contact with
Palomino-Coronado and identified the two individuals in the
picture as “B” for B.H. and “A” for Anthony.
The government sought to indict Palomino-Coronado on one
count: knowingly employing, using, persuading, inducing,
enticing, and coercing a minor to engage in sexually explicit
conduct for the purpose of producing a visual depiction of such
conduct in violation of 18 U.S.C. § 2251(a).2
2 At oral argument, the government acknowledged that an
indictment was pending in state court for various state-law
(Continued)

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At trial, B.H. testified that Palomino-Coronado had touched
her private parts on more than one occasion. She also testified
that she was scared during her initial interview with the police
and had lied to them. She then identified herself and Palomino-
Coronado in the pictures from his cell phone, including the
sexually explicit photo. B.H. also testified that during her
interview with Savoy, Savoy told her that she could not go home
if she kept denying that she and Palomino-Coronado had had sex.
B.H. said that Savoy had taken her teddy bear away from her
during the interview because she was not answering Savoy’s
questions.
Finnegan also testified, both as a lay witness and as an
expert in child forensic interviewing. As part of her
testimony, she evaluated the interview that Savoy conducted and
explained that it was coercive and did not follow established
protocols. Finnegan also testified about her own interview of
B.H., during which B.H. disclosed to her that B.H. and Palomino-
Coronado had engaged in sexual conduct and identified the
photograph.
At the close of the government’s case, Palomino-Coronado
made a motion for judgment of acquittal based on insufficient
crimes, which might well be supported by the unfortunate and
horrific events that are at issue here.

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evidence pursuant to Federal Rule of Criminal Procedure 29. The
district court denied the motion.
The jury subsequently found Palomino-Coronado guilty. The
court sentenced him to thirty years, which was both the maximum
permitted under the statute and the lowest amount of time within
the guidelines range. Palomino-Coronado timely appealed.
II.
We review a challenge to the sufficiency of the evidence de
novo. United States v. Engle, 676 F.3d 405, 419 (4th Cir.
2012). We must affirm the verdict if it is supported by
substantial evidence, viewed in the light most favorable to the
government. United States v. Gillion, 704 F.3d 284, 294 (4th
Cir. 2012) (citing United States v. Reid, 523 F.3d 310, 317 (4th
Cir. 2008)). Substantial evidence is “evidence that a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” United States v. Alerre, 430 F.3d 681, 693
(4th Cir. 2005) (citation omitted).
A defendant bringing a sufficiency challenge “must overcome
a heavy burden.” United States v. Hotye, 51 F.3d 1239, 1245
(4th Cir. 1995). The Court “may not overturn a substantially
supported verdict merely because it finds the verdict
unpalatable or determines that another, reasonable verdict would

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be preferable,” United States v. Burgos, 94 F.3d 849, 862 (4th
Cir. 1996); instead reversal for insufficiency must “be confined
to cases where the prosecution’s failure is clear,” Burks v.
United States, 437 U.S. 1, 17 (1978).
III.
Palomino-Coronado contends that the government failed to
prove one of the elements of § 2251(a)—namely, that he acted for
the purpose of producing a visual depiction.3
Section 2251(a) provides, in relevant part,
“Any person who employs, uses, persuades, induces,
entices, or coerces any minor to engage in . . . any
sexually explicit conduct for the purpose of producing
any visual depiction of such conduct . . . shall be
punished as provided under subsection (e) . . . if
that visual depiction was produced or transmitted
using materials that have been mailed, shipped, or
transported in or affecting interstate or foreign
commerce by any means.”
18 U.S.C. § 2251(a).
3 A week prior to oral argument, the government filed a
letter of supplemental authority asserting that Palomino-
Coronado waived his purpose argument by not raising it during
his Rule 29 motion. We are entitled to excuse a defendant’s
waiver in the district court if the government fails to properly
and timely raise a waiver contention in its brief. See United
States v. Ashford, 718 F.3d 377, 381 (4th Cir. 2013); United
States v. Carthorne, 726 F.3d 503, 509 n.5 (4th Cir. 2013). In
“the interests of fairness and the integrity” of our procedural
rules, we hold that the government waived its waiver argument.
See Ashford, 718 F.3d at 381.

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As the text indicates, § 2251(a) contains a specific intent
element: the government was required to prove that production
of a visual depiction was a purpose of engaging in the sexually
explicit conduct. Id.; see United States v. Lebowitz, 676 F.3d
1000, 1013 (11th Cir. 2012). “It is simply not enough to say
‘the photo speaks for itself and for the defendant and that is
the end of the matter.’” United States v. Crandon, 173 F.3d
122, 129 (3d Cir. 1999) (discussing the purpose requirement in
the related cross-reference under U.S.S.G. § 2G2(c)(1)). That
is, a defendant must engage in the sexual activity with the
specific intent to produce a visual depiction; it is not
sufficient simply to prove that the defendant purposefully took
a picture. Nonetheless, courts do not require that a defendant
be single-minded in his purpose to support a conviction under
§ 2251(a). E.g., Lebowitz, 676 F.3d at 1013; United States v.
Morales-de Jesus, 372 F.3d 6, 21–22 (1st Cir. 2004); see also
United States v. Cox, 744 F.3d 305, 309 (4th Cir. 2014)
(considering “purpose” in the context of the application of a
cross-reference under § 2G2.1(c)(1) of the sentencing guidelines
governing production of some child pornography offenses).
We have not previously considered a challenge to the
sufficiency of the evidence in a conviction under § 2251(a).
Courts have sometimes been able to rely on direct evidence
indicating a defendant’s purpose. E.g., Lebowitz, 676 F.3d at

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1013. In Lebowitz, for example, the minor testified that he and
the defendant “discussed videotaping a sexual encounter prior to
the recording.” Id.; see also United States v. Lee, 603 F.3d
904, 918 (11th Cir. 2010) (holding that the defendant’s
description of “how many photographs he wanted of each girl” and
“how he wanted the girls to pose” contributed to the
reasonableness of the jury’s finding that he intended to use the
minors in the production of child pornography).
More often, however, courts are presented only with
circumstantial evidence to show that a defendant acted with
purpose. For example, defendants’ actions, instructions, and
descriptions of the visual depictions produced or to be produced
might indicate purpose. E.g., Morales-de Jesus, 372 F.3d at 21–
22. In Morales-de Jesus, finding the evidence sufficient, the
First Circuit pointed to the fact that the defendant “actively
concealed from the minor the fact that he was videotaping her.”
Id. at 21. The defendant also gave “specific instructions
regarding certain positions he wanted her to assume relative to
the camera, instructed her on what to say while the camera
recorded their activities, and used a remote control to zoom the
camera in and out while they were having sex.” Id. at 21–22;
see also United States v. Sirois, 87 F.3d 34, 42 (2d Cir. 1996)
(holding that the jury could have inferred intent in part based
on the defendant’s “direct[ing] the participants to move their

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sexual activity to different parts of the lean-to, so that he
could more easily videotape them”).
Courts have also found the number of sexually explicit
recordings or depictions indicative of purpose. E.g., United
States v. Ortiz-Graulau, 526 F.3d 16, 19 (1st Cir. 2008). In
Ortiz-Gralau, the defendant had taken over fifty pictures
depicting sexual contact between him and a minor or of the minor
in a sexually explicit position. Id. at 18. The First Circuit
found that the “number of photographs, many of sexually explicit
poses, permit[ted] a strong inference that some of the conduct
occurred in order to make the photographs.” Id. at 19 (citing
Morales-de Jesus, 372 F.3d at 22); see also Morales-de Jesus,
372 F.3d at 22 (“[A] reasonable jury also could infer that since
Morales taped sexual encounters with the minor more than once,
he induced the girl to engage in sex acts for the purpose of
creating videotapes of their encounters.”).
Finally, courts have considered evidence of “purposeful
conduct” surrounding the photographic or video equipment used.
E.g., Lebowitz, 676 F.3d at 1013; see also Morales-de Jesus, 372
F.3d at 22. In Lebowitz, the Eleventh Circuit cited evidence
that the defendant brought the camera and a tripod with him,
carried them through the minor’s bedroom window, and set them
up. 676 F.3d at 1013. Moreover, evidence showed that “[t]he
sexual encounter occurred in [the minor’s] bedroom only because

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there was not room for the recording equipment in Lebowitz’s
car.” Id. Meanwhile, in Morales-de Jesus, “[a]fter the
defendant had taken the minor to a motel room to have sex for
the fourth time, he returned to his car and retrieved the
recording equipment that he kept there.” 372 F.3d at 22. The
First Circuit also found that the fact that the defendant “kept
sexual aids in the same bag with the camera” might also have
been enough for the jury to find that the defendant had planned
to videotape the encounters. Id.; see also Sirois, 87 F.3d at
37, 42 (finding relevant that both actors had brought recording
equipment: one a camera and a videorecorder and the other
another camera).
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. See, e.g., Morales-de Jesus, 372 F.3d at 21–
22; Sirois, 87 F.3d at 42.
All that 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 his basement; and that one sexually

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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.
We find it significant here that only one photograph was
taken and subsequently deleted.4 The government argues that
there is no requirement that a defendant take a certain quantity
of images or engage in a certain amount of preparation to
determine whether he has acted for the purpose of producing a
visual depiction. We agree as a general matter. Although, when
pressed at oral argument, the government could not provide any
authority upholding a conviction challenging the specific intent
element where only one photograph was taken.
In this instance, where Palomino-Coronado engaged in sexual
activity with B.H. over many months, the fact that only one
image was produced militates against finding that his intent in
doing so was to take a picture. The single photo is not
evidence that Palomino-Coronado engaged in sexual activity with
B.H. to take a picture, only that he engaged in sexual activity
4 We note that the record did not indicate at what point the
photograph was deleted, whether it was immediately after it was
taken or sometime later.

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with B.H. and took a picture. Cf. Crandon, 173 F.3d at 130
(acknowledging that “[s]et in context,” the fact that the
defendant had taken close to fifty pictures of the minor, only
two of which were sexual in nature, “could support [the
defendant’s] contention that his purpose in taking the photos
was the memorialization of their time together or his love for
her—a purpose other than producing sexually explicit material”).
To be sure, a situation might well present itself where only one
photograph was taken but where there was other evidence of
purpose, and we do not hold that a sufficiency challenge would
necessarily fail in that instance. But that is not this case.
The government contends that Palomino-Coronado’s frequent
use of the camera on his cell phone showed that he “regularly
and intentionally used his phone to take pictures of all aspects
of his life.” The government also asserts that the fact that
the photo at issue focused on Palomino-Coronado’s genital area
as he engaged in sexual activity with B.H. demonstrates that the
photo was not unintentionally or inadvertently captured.
But the government does little to explain how these
conclusory statements indicate that Palomino-Coronado initiated
the sexual activity with B.H. for the purpose of producing the
picture. Instead, the government appears to conflate the
voluntary act of taking the picture with the specific intent
required under the statute.

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The fact that Palomino-Coronado brought his cell phone with
him to the basement does not support a finding of purpose.
Palomino-Coronado’s use of his cell phone to take pictures is a
far cry from the tripod and other recording equipment used to
support purpose in other cases. See, e.g., Lebowitz, 676 F.3d
at 1013; Morales-de Jesus, 372 F.3d at 22. Whereas those
devices demonstrate some sort of forethought, planning, or
intent, the mere presence of a cell phone is not evidence of
purpose. Cell phones are now ubiquitous, especially for
teenagers, and almost always within reach. We do not conclude
that use of a cell phone will never be evidence of purpose under
§ 2251(a); instead, we simply hold that Palomino-Coronado’s use
of his cell phone in this instance does not meet the specific
intent requirement under the statute.
IV.
For these reasons, we hold that the government adduced
insufficient evidence to show that Palomino-Coronado acted for
the purpose of producing a visual depiction. The district court
thus erred in denying Palomino-Coronado’s motion for judgment of
acquittal. Therefore, we reverse the district court’s ruling
and vacate Palomino-Coronado’s conviction.
REVERSED AND VACATED

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