Gregory A. Napolitano, Laufman & Napolitano, LLC, Cincinnati, Ohio, for Appellant.
Daniel R. Ranke, United States Attorney's Office, Cleveland, Ohio, for Appellee.
Before: DAUGHTREY, COLE, and GIBBONS, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge.
After a jury found defendant Trent Shepard guilty of three counts of receipt of visual depictions of minors engaged in sexually explicit conduct and an additional count of attempted receipt, the district court sentenced Shepard to 168 months in prison and five years on supervised release. The district court also imposed a $400 special assessment on the defendant, ordered Shepard to pay $3,000 in restitution to child victim " Vicky," and imposed as special conditions of supervision prohibitions on any access by Shepard to computers, cameras, or video equipment without prior written approval from the probation officer or the court. On appeal, the defendant now challenges: (1) the seating of a juror who asserted he would not view the pornographic images; (2) the sufficiency of the evidence introduced to convict Shepard; and (3) the reasonableness of the sentence imposed upon him. For the reasons discussed below, we conclude that the district court abused its discretion in failing to remove from the jury a member of the panel who was unable to swear that he would give the defendant a fair trial. As a result, the case must be remanded for retrial.
I. FACTUAL AND PROCEDURAL BACKGROUND
Trent Shepard was employed as an outside salesman by Blue Tarp Financial, a
company that provided trade credit to building suppliers. Although Blue Tarp Financial was headquartered in Charlotte, North Carolina, Shepard lived in Poland, Ohio, and worked out of that home base. In the process of terminating Shepard from employment at Blue Tarp, company officials discovered child pornography on three different Blue Tarp laptops that Shepard had used in the course of his job. As later described by a witness at trial, many of the files contained very graphic images of naked, prepubescent children. After contacting the company's attorneys, the laptops were secured and then turned over to the FBI.
Eventually, all three computers were sent to the FBI office in Cleveland, Ohio. Once there, the laptops were examined by a forensic examiner with the FBI's Computer Analysis Response Team. He discovered that the three laptops contained child pornography in the computers' temporary internet files, caches, free spaces, and shared folders. The evidence led to a multi-count indictment against Shepard, charging him with receipt and attempted receipt of visual depictions of minors engaged in sexually explicit conduct. He pleaded not guilty, intending to claim as a defense that he did not know how the pornographic material in question got into his computer, and went to trial.
Prior to commencement of voir dire, the district court distributed two questionnaires to prospective jurors. One of those questionnaires asked, " Does the fact that the defendant is charged with crimes involving sexually explicit materials cause you to be predisposed either for or against the defendant or the government?" Because Juror 29 answered that inquiry in the affirmative, the district judge asked him whether he cared to elaborate on that reply. In response, the following colloquy occurred:
JUROR 29: Well, I mean, just the nature of the case, obviously. You know, I've got little kids, so obviously just the nature of the case.
THE COURT: Well, if it was a murder case, would you have a problem with it?
JUROR 29: No.
THE COURT: If it was a robbery case, would you have a problem?
JUROR 29: No.
THE COURT: Burglary case, would you have a problem?
JUROR 29: No.
THE COURT: See, the issue still is, is the government able to prove, by proof beyond a reasonable doubt, the elements of the crime? And if they do, the jury's response is guilty. And if they fail, the jury's response is not guilty.
Now, you don't have any problem with that concept, do you?
JUROR 29: No. I thought I should at least mark it to be fair.
THE COURT: I understand, and I appreciate the fact you marked it. But what I'm really trying to get you to do is think intellectually about what jury service is all about.
JUROR 29: Correct, I understand.
THE COURT: No matter what the crime is, the government has to prove it. And you already indicated you wouldn't have a problem if it was a murder case or robbery case or burglary case. I'm just [trying] to get you to think through your— I don't think you're in favor of murder?
JUROR 29: No.
THE COURT: You are not in favor of robbery or burglary. So, see, it's the sexual connotations that makes you stop and think. And I don't— I appreciate the fact you told me about this fairly and honestly, but I want you to think about it in terms of whether or not you really
can serve as a juror in this case. And I think you can based on answers you've given me. Let me say, there is no indication here— there is no establishment or no proof that the defendant is a ...