United States of America v. Thomas B. Davis

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 00-3536
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UNITED STATES OF AMERICA,
Appellee
v.
THOMAS B. DAVIS,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Criminal No. 99-cr-00235
(Honorable Sylvia H. Rambo)
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Submitted Under Third Circuit LAR 34.1(a)
April 6, 2001
Before: SCIRICA, AMBRO, and GIBSON, Circuit Judges.
(Filed: July 26, 2002)
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OPINION OF THE COURT
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JOHN R. GIBSON, Circuit Judge:
Thomas Davis appeals his convictions for receiving, possessing, attempting to
possess, and possessing more than three items of, child pornography that has been shipped
in interstate commerce under 18 U.S.C. 2252(a)(4)(B), (b)(2), 2252A(a)(2), (a)(5)(B),
(b)(2) (1994 & Supp. II 1996). The district court sentenced Davis to sixty-seven months
in prison. We affirm.
In June 1995, Special Agent Dennis Guzy, acting on a tip from local law
enforcement, began a mail correspondence with Davis as part of an undercover child
pornography sting operation. On July 1, 1995, Davis wrote that he "love[d] handsome,
hairless or hairy, tall teenage boys (ages 14-17) in every type of sexual photograph [or
film]," and that he had "a film of a showering boy who is completely naked, hairless, and I
would estimate to be about 10 or 11. Though not legal in the U.S." Davis ultimately broke
off the correspondence with Guzy.
In December 1996, Davis responded to an ad placed by United States Postal Inspector
David Dirmeyer in a homosexual video club trading directory. The ad offered to trade
"Mykonas" videos--videos formerly produced under the name "Overseas Males," and known

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in the pornographic video community to often contain child pornography. Davis and
Dirmeyer proceeded to exchange a series of letters, in one of which Dirmeyer offered to send
Davis videos from his collection. Dirmeyer’s offer contained a description of three videos:
"Jim & Tim," involving "[t]wo real life brothers, age around 20"; "Brother & Me," involving
a "little brother Tom [who] was 13"; and "Circle Jerk," involving "[a] group of 3 boys -
allegedly cousins aged 14-15." Dirmeyer’s letter expressly stated that "[a]ction and ages are
as written." Davis chose "Brother & Me," but was in the hospital when a controlled delivery
was attempted by Postal Inspector Thomas Kochman. Davis’s attempted receipt of "Brother
& Me" forms the basis of Count III. See 18 U.S.C. 2252A(a)(5)(B), (b)(2), (d) (Supp. II
1996) (prohibiting attempts to knowingly possess any video tape containing three or more
images of child pornography that has been shipped in interstate commerce).
After returning from the hospital, Davis asked Dirmeyer to resend the tape. Dirmeyer
responded with another letter, seeking to confirm that Davis was "still interested in the tape
we talked about," and ultimately resent the list of three videos for Davis to choose from.
Davis then asked Dirmeyer to choose one for him, writing that he’d "love to see any of the
three." Dirmeyer, however, insisted that Davis make his own selection, and Davis ultimately
chose "Jim & Tim" and "Circle Jerk." On July 8, 1997, Kochman executed a controlled
delivery of the videos. Davis’s receipt and possession of "Circle Jerk" forms the basis of
Counts I and II. See 18 U.S.C. 2252A(a)(2), (a)(5)(B) (Supp. II 1996) (prohibiting
knowing receipt and possession of child pornography that has been shipped in interstate
commerce).
Finally, in an unrelated October 1995 search of a Louisville, Kentucky, home
pursuant to another child pornography investigation, postal inspectors found a series of
letters from Davis to one Charles Smith. The letters focused on the two men’s mutual
fascination with viewing and trading "younger male tapes," and mentioned multiple
"Overseas Males" titles. In separate letters, Davis thanked Smith for sending "OM 118" and
"The Young, Wet and Thai." As to "The Young, Wet and Thai," Davis wrote, on May 6,
1995: "I absolutely loved their youthful torsos - - - so golden tan and smooth in splendid
sexual actions! . . . And that hot shower scene . . . was a sure turn-on." Copies of "OM 118"
and "The Young, Wet and Thai" were recovered from Smith’s residence. Davis’s possession
of "OM 118," "The Young, Wet and Thai," and "Circle Jerk," together with his attempted
possession of "Brother & Me," forms the basis of Count IV. See 18 U.S.C. 2252
(a)(4)(B), (b)(2), (c) (1994 & Supp. II 1996) (prohibiting knowing possession, or knowing
attempted possession, of three or more video tapes containing visual depictions of a minor
engaging in sexually explicit conduct, that have been shipped in interstate commerce).
Davis requested a non-jury trial and the court found him guilty on all four counts.
He now challenges the admissibility and sufficiency of certain evidence. "We recognize that
a trial court’s determination of admissibility may be overturned only for clear abuse of
discretion." Joy Mfg. Co. v. Sola Basic Indus., Inc., 697 F.2d 104, 111 (3d Cir. 1982).
Since the judge here returned a verdict of guilty, "the government is entitled to have us view
the evidence in the light most favorable to it. In evaluating the evidence, we give the
prosecution the benefit of all legitimate inferences which might reasonably be drawn from
the proven facts." United States v. Hamilton, 457 F.2d 95, 99 (3d Cir. 1972).
I.
Under Counts I and II, Davis was found guilty of receipt and possession of
child pornography in the form of the video "Circle Jerk." In order to carry its burden of
proof, the government had to prove, among other things, that "Circle Jerk" contained child
pornography and that Davis knew "Circle Jerk" contained child pornography. See 18 U.S.C.
2256(8)(A) (Supp. II 1996) (defining "child pornography" to include "any visual depiction
. . . the production of [which] . . . involves the use of a minor engaging in sexually explici
conduct"); United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994) ("Age
of minority in 2252 indisputably possesses the same status as an elemental fact . . . .").
Davis argues that the district court erred when it allowed Inspectors Kochman and Dirmeyer
to testify on the issue of whether "Circle Jerk" contained child pornography. Davis goes on
to argue that, even if it was proper for the district court to admit this testimony, it consti
the only evidence that "Circle Jerk" contained child pornography, and as such was
insufficient. Finally, as to Counts I and II, Davis argues the evidence presented at trial wa
insufficient to prove Davis knew that "Circle Jerk" contained child pornography.
A.
Davis argued at trial that in order to prove that "Circle Jerk" contained child

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pornography, the government had to have experts testify to that fact using scientific analysis
The district court instead admitted the testimony of Inspectors Kochman and Dirmeyer as
"lay experts." Inspector Kochman testified that he had years of training and experience in
determining the ages of actors on video, that he had filed affidavits and testified in court a
to such matters, and that he was one of four postal inspectors nationwide called in to render
assistance in this area during a particular child pornography investigation in Los Angeles
involving "Overseas Males" videos. He had viewed "Circle Jerk" and determined it
contained child pornography. Inspector Dirmeyer testified that he also had training and
experience in the area, that he had viewed "Circle Jerk," and that in his opinion the actors
were so clearly under eighteen that it "wasn’t even close."
Under the version of Rule 701 in effect at the time of Davis’s trial, opinion testimony
of lay witnesses is admissible where it is rationally based on personal knowledge and helpful
to the trier of fact. Fed. R. Evid. 701 (1987) (amended 2000). Expert testimony may be
required to enable the fact finder to determine age in cases where the age of the actor in the
video is difficult to determine. See United States v. Katz, 178 F.3d 368, 373 (5th Cir. 1999)
("[I]n this case, in which the government must prove that a model, who is post-puberty but
appears quite young, is less than eighteen years old, expert testimony may well be necessary
. . . ."); cf. X-Citement Video, 513 U.S. at 72 n.2 ("The opportunity for reasonable mistake
as to age increases significantly once the victim is reduced to a visual depiction, unavailabl
for questioning by the distributor or receiver."). At the same time, "age is a matter on whic
everyone has an opinion. Knowingly or unknowingly, we all form conclusions about
people’s ages every day. It is therefore particularly appropriate for a lay witness to expres
an opinion on the subject." United States v. Yazzie, 976 F.2d 1252, 1256 (9th Cir. 1992).
We have held that "a lay witness with first-hand knowledge can offer an opinion akin to
expert testimony in most cases, so long as the trial judge determines that the witness
possesses sufficient and relevant specialized knowledge or experience to offer the opinion."
Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190, 1201-02 (3d Cir. 1995). Since
the district court satisfied itself that the two witnesses possessed specialized knowledge, it
decision to admit the inspectors’ opinion testimony as to the age of the actors was not clearl
erroneous regardless of whether we view that testimony as lay opinion testimony akin to that
of an expert or merely lay opinion testimony based on ordinary human experience. See
United States v. Stanley, 896 F.2d 450, 452 (10th Cir. 1990) (admitting postal inspector’s
opinion under Rule 701 as proof that subjects in photographs were under eighteen).
B.
Davis argues that the evidence was not sufficient to prove that "Circle Jerk" contained
child pornography. We are not persuaded.
Davis cites the Second Circuit case of United States v. Boissoneault, 926 F.2d 230
(2d Cir. 1991), for the proposition that "at least in criminal cases, expert testimony on
ultimate issues should be given little weight." Id. at 233. Boissoneault is much narrower
than Davis would have us believe, however, and the statement Davis quotes from that
opinion is rooted in the belief that "an expert’s personal opinion that certain ambiguous
conduct constitutes criminal behavior should be given little, if any, weight in assessing the
sufficiency of the evidence." United States v. Duarte, 950 F.2d 1255, 1261 (7th Cir. 1991)
(distinguishing Boissoneault in part because that decision is applicable to "experts who
testify that a defendant’s ambiguous physical conduct constituted criminal behavior").
Without expressing any opinion as to whether Boissoneault reflects the law of this circuit,
we conclude it is not applicable here. There is nothing in the record before us to suggest th
there was anything ambiguous about the contents of the tape--as opposed to the description
of the tape (see below).
In addition to the testimony of the inspectors, the judge had before her the tape itself,
which had been admitted into evidence. Davis seems to assume, in making his argument as
to this issue, that the judge never viewed the tape. We will not entertain this assumption.
In a criminal trial to a judge, either party may request a statement of factual findings. Fed
R. Crim. P. 23(c). Davis did not do so, and we will not assume the trier of fact ignored
admitted evidence when Davis failed to exercise his right to test that assumption.
We conclude the evidence was sufficient for the trier of fact to find that "Circle Jerk"
contained child pornography. See United States v. Brown, 862 F.2d 1033, 1039-40 (3d Cir.
1988) ("[T]he testimony of the postal inspector provided sufficient evidence from which the
jury could, if it desired, find that the tapes which Brown requested did in fact constitute ch
pornography.").

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C.
Davis argues that even if "Circle Jerk" did in fact contain child pornography, the
government did not produce sufficient evidence to prove that he knew the actors portrayed
were minors. See X-Citement Video, 513 U.S. at 78 ("[T]he term ’knowingly’ in 2252
extends both to the sexually explicit nature of the material and to the age of the
performers."). Specifically, he argues that the description of "Circle Jerk" provided by
Dirmeyer was too ambiguous to confer knowledge of the age of the actors on him.
Davis ordered a tape describing the actors as "allegedly cousins aged 14 - 15." He
argues "allegedly" modifies "aged 14 - 15" and thus he could not have known for certain that
the tape contained child pornography. Regardless of the grammatical soundness of that
argument, Davis knew the "action and ages [were] as written." He also had previously
ordered, and later expressed a willingness to receive, another tape ("Brother & Me")
unambiguously described as involving a thirteen year-old. We conclude this evidence is
sufficient to satisfy the scienter requirement of 2252A. See United States v. Knox, 32 F.3d
733, 753-54 (3d Cir. 1994) (concluding scienter requirement under 2252 was satisfied
where the ad responded to described the film in question as containing "girls between the
ages of 11 and 17"); Brown, 862 F.2d at 1038 (concluding evidence was sufficient to prove
that defendant knowingly received child pornography in light of "his solicitation of child
pornography as expressed in his letter and other correspondence").
II.
Davis argues that he abandoned his attempt to receive the tape "Brother & Me." We
have recognized, in United States v. Kikumura, 918 F.2d 1084, 1108 (3d Cir. 1990), that
Model Penal Code 5.01 is representative of the "well-settled principles of the law of
attempts." Assuming for the purposes of this opinion that the defense of abandonment is
available to Davis, that defense is only available if the asserted abandonment was voluntary.
See United States v. Shelton, 30 F.3d 702, 706 (6th Cir. 1994) ("[W]ithdrawal, abandonment
and renunciation, however characterized, do not provide a defense to an attempt crime. As
noted, the attempt crime is complete with proof of intent together with acts constituting a
substantial step toward commission of the substantive offense."); Model Penal Code
5.01(4) ("[I]t is an affirmative defense that he abandoned his effort to commit the crime . .
. under circumstances manifesting a complete and voluntary renunciation of his criminal
purpose."). Here, the only reason Davis did not receive "Brother & Me" was that he was in
the hospital. Following his return from the hospital he asked that it be re-sent. He
eventually selected and received a different child pornography video. The district court
properly found Davis guilty of attempting to possess child pornography.
III.
As to Count IV, Davis argues first that there was insufficient evidence to prove that
either "OM 118" or "The Young, Wet and Thai" contained images of a minor engaging in
sexually explicit conduct. He argues that the testimony of Inspector Kochman should never
have been admitted because the tape he was testifying about was not found in Davis’s
apartment and thus his perception was not rationally based. See Fed. R. Evid. 701. Davis
also argues that even if Kochman’s testimony was properly admitted, the evidence was not
sufficient to convict him of possessing the tapes because neither "OM 118" nor "The Young,
Wet and Thai" were ever found in his possession. Since only one of the two tapes is
necessary to sustain this count, and since we find sufficient evidence to maintain Davis’s
conviction on the basis of "The Young, Wet and Thai," we do not address "OM 118."
Davis argues that Kochman’s testimony should not have been admitted because the
tape Kochman viewed was Smith’s, not Davis’s. However, Kochman was testifying to
whether the video production entitled "The Young, Wet and Thai" contained images of a
minor engaging in sexually explicit conduct, not whether the particular copy of "The Young,
Wet and Thai" Davis possessed contained such images. As such, his testimony was based
on his personal viewing of "The Young, Wet and Thai," helpful to the trier of fact, and
properly admitted. Cf. Stanley, 896 F.2d at 452 ("Inspector Carr’s testimony [as to the age
of the subjects depicted in the photographs] was helpful as an explanation of why he ordered
a supervised delivery, obtained a search warrant, and seized the defendant’s package.").
Davis next argues that even if Kochman’s testimony was properly admitted, it was not
sufficient to prove "The Young, Wet and Thai" contained images of a minor engaging in
sexually explicit conduct. In testifying that "The Young, Wet and Thai" did indeed contain
such images, Inspector Kochman testified that he had used stop action and applied the
Tanner scale. See United States v. Long, 108 F.3d 1377 (6th Cir. 1997) (unpublished

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decision) (describing Tanner scale as "a methodology used to help doctors measure the
stages of puberty in a child"). On cross, Davis’s counsel attempted to impeach Kochman’s
testimony that there were multiple scenes of minors by referring to the report of a Dr.
Charles F. Johnson indicating that there was only one scene in "The Young, Wet and Thai"
involving a minor. However, only one scene of a minor engaging in sexually explicit
conduct is required. See 18 U.S.C. 2252(a)(4)(B)(i), (c) (prohibiting knowing possession
of three or more video tapes containing "any visual depiction . . . of a minor engaging in
sexually explicit conduct"). In addition, the tape was admitted into evidence. Based on our
discussion above as to Counts I and II, we conclude the evidence here was sufficient to find
that "The Young, Wet and Thai" contained images of a minor engaging in sexually explicit
conduct.
Finally, Davis argues that the evidence was insufficient to prove he possessed "The
Young, Wet and Thai." In a May 6, 1995, letter to Smith, Davis thanked Smith for sending
him "The Young, Wet and Thai." In that same letter, Davis referred to the use of copies:
"You mentioned you have ’Boys in The River Kwai’ and ’Thai Treasures’. Of course I’d love
to see copies of these . . . . . or should it be somehow easier to copy . . . . anything Germa
. . . ." He also described a particularly "hot shower scene" in "The Young, Wet and Thai."
Less than two months later he sent a letter to Guzy describing a film he had that included a
scene "of a showering boy . . . not legal in the U.S." A rational trier of fact could find th
evidence sufficient to conclude Davis had a copy of Smith’s version of "The Young, Wet
and Thai.". See Jackson v. Virginia, 443 U.S. 307, 319 (1979) ("[T]he relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt."), quoted in Government of the Virgin Islands v. Edwards, 903 F.2d 267,
270 (3d Cir. 1990) ("The evidence against Edwards . . . was circumstantial. However, that
does not mean that it does not provide an adequate basis for the jury verdict.").
IV.
We affirm the judgment of the district court. _______________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ John R. Gibson
Circuit Judge

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