FILED

NOT FOR PUBLICATION MAY 13 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 09-10172

Plaintiff - Appellee, D.C. No. 2:03-cr-00384-WBS

v.

MEMORANDUM *

MICHAEL LABRECÏUE,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 09-10179

Plaintiff - Appellee, D.C. No. 2:03-cr-00384-WBS

v.

ALLEN HARROD,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of California William B. Shubb, Senior District Judge, Presiding

Argued and Submitted March 14, 2011 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Before: PAEZ, BERZON, and BEA, Circuit Judges.

1. There was not sufficient evidence that sexually explicit visual images

of J. were produced 'as a consequence of' Allen Harrod transferring and Michael

LaBrecque obtaining custody or control over J., as required by 18 U.S.C. y 2251A.

There was evidence that LaBrecque µnew the sexually explicit photographs

of J. were going to be taµen. There was not, however, any evidence that J.'s

mother ever spoµe to LaBrecque about the photos before they were taµen, or that

LaBrecque exercised any control over J. with regard to the photo shoot. Neither

the travel of J. to the LaBrecque home, nor the eventual transfer of sole custody of

J. to LaBrecque, was enough to satisfy the 'as a consequence' requirement of the

statute.

Moreover, although the evidence indicates that Harrod may have transferred,

and LaBrecque obtained, some measure of custody or control over J. when he

arrived at the LaBrecque household, J.'s mother also continued to exercise control

over him in many respects as long as she was in Texas. In particular, the evidence

indicates that J.'s mother, not LaBrecque, had 'supervision over or responsibility

for' J. with regard to the photo shoot. 18 U.S.C. y 2256(7). In other words, it was

'as a consequence of' J.'s mother having control over him with regard to the photo

2 shoot that she was able to direct and taµe the pornographic photographs.

Conversely, there was no evidence that the photographs were taµen 'as a

consequence of' any custody or control LaBrecque may have exercised over J.

while his mother was still in Texas.

In sum, there was insufficient evidence in this case for a rational trier of fact

to conclude, beyond a reasonable doubt, that Harrod transferred, and LaBrecque

obtained, custody or control of J. 'with µnowledge that, as a consequence of the . .

. transfer . . . or obtaining of custody,' J. would be portrayed in sexually explicit

photographs. 18 U.S.C. y 2251A (emphasis added); see Jacµson v. Virginia, 443

U.S. 307, 319 (1979). We therefore reverse Harrod's conviction on Count Two

and LaBrecque's conviction on Count Three.

2. In contrast, there is sufficient evidence to support LaBrecque's

conviction on Count One.1 Viewed in the light most favorable to the prosecution,

the evidence was sufficient for a rational jury to conclude, beyond a reasonable

doubt, that prior to J.'s July 1991 trip to Texas, LaBrecque intended that one of the

dominant purposes of the trip was criminal sexual activity involving J. See United

1 LaBrecque was convicted of aiding and abetting J.'s interstate travel with intent to engage in criminal sexual activity. The only issue on appeal is whether there was sufficient evidence for a reasonable jury to conclude that LaBrecque had the requisite intent.

3 States v. Kinslow, 860 F.2d 963, 967 (9th Cir. 1988) ('In this circuit, a federal

crime under 18 U.S.C. y 2423 exists if the immoral activity is 'one of the dominant

purposes' of the transportation.' (quoting United States v. Fox, 425 F.2d 996, 999

(9th Cir. 1970))), overruled on other grounds by United States v. Bracµeen, 969

F.2d 827 (9th Cir. 1992).

There was circumstantial evidence from which a reasonable jury could have

inferred that, before J.'s interstate travel, LaBrecque intended that the photo shoot

occur. The most important of this evidence was that LaBrecque, unsolicited, told

J.'s mother the location of the Polaroid camera very shortly after her arrival at his

home. There was also evidence that LaBrecque bought film for the camera and

made comments before and after the photo shoot that led J. to believe LaBrecque

µnew about the photo shoot. Also, before the 1991 trip, Harrod had already

planned for J. to receive sexual 'training' in Texas, and LaBrecque and Harrod

communicated frequently about their 'religion,' supporting the inference that

LaBrecque also intended that J. would be involved in sexual activity after his

mother left, as he eventually was.

3. LaBrecque and Harrod also challenge their 15-year sentences for

Counts One and Seven. We agree, as conceded by the government, that the district

court erred in imposing 15-year sentences for Counts One and Seven. At the time

4 of the offense conduct, the maximum statutory sentence for a violation of 18

U.S.C. y 2423(a) was 10 years.

4. Finally, LaBrecque and Harrod both challenge the ü25,000 fines

imposed by the district court.

a. Harrod and LaBrecque did not meet their burden of demonstrating

their inability to pay the fines. Their representation by court-appointed counsel is a

'significant indicator[] of present inability to pay,' U.S.S.G. y 5E1.2, app. note 3.

But, that representation does not automatically satisfy their burden of proving they

are unable to pay the fine, now or in the future. See United States v. Orlando, 553

F.3d 1235, 1240 (9th Cir. 2009); United States v. Ladum, 141 F.3d 1328, 1344 (9th

Cir. 1998). Both Pre-Sentence Reports (PSRs) recommended the ü25,000 fines,

based in large part on the lacµ of financial information disclosed by the defendants.

LaBrecque's and Harrod's failure to disclose financial information to the Probation

Office is a factor supporting the district court's conclusion that they did not

demonstrate inability to pay the fines. See Orlando, 553 F.3d at 1240; United

States v. Bricµey, 289 F.3d 1144, 1152 (9th Cir. 2002), overruled on other grounds

by United States v. Contreras, 593 F.3d 1135 (9th Cir. 2010) (en banc); United

States v. Rafferty, 911 F.2d 227, 232-33 (9th Cir. 1990).

5 The only information Harrod provided, other than his relatively sparse

Financial Affidavit submitted years before sentencing for the purpose of getting

appointed counsel, was that he received ü900 per month from his military

retirement, which was barely sufficient to cover child support payments. The

district court had no information regarding the amount of child support payments

or the identity or age of Harrod's dependent(s). Harrod will not have to pay child

support payments forever, and his military pension presumably could be used at

some future date to pay off the fine in installments, especially as he will be

imprisoned for life and will have few self-support expenses. Under these

circumstances, there was no clear error in the district court's determination that

Harrod had failed to demonstrate by a preponderance of the evidence that he could

not presently or in the future, pay the fine. See Ladum, 141 F.3d at 1344; United

States v. Robinson, 20 F.3d 1030, 1033 (9th Cir. 1994).

LaBrecque provided even less information than Harrod. His counsel had

advised him not to provide any information to the Probation Office, and his

objection to the PSR's recommendation of a ü25,000 fine requested the district

court to infer just from the fact that he had appointed counsel that he had

insufficient assets to pay the fine. His outdated Financial Affidavit indicated that

he and his wife earned ü2,900 per month prior to his arrest and owned three cars

6 worth a total of ü5,000, but that they did not have any banµ accounts. LaBrecque's

counsel told the probation officer that the cars had been sold, but provided no

details about the money received from the sales. The district court explicitly

faulted LaBrecque for failing to disclose financial information, and noted that he

could 'have some holdings' despite having been in custody since 2003.

Considering LaBrecque's previous household income and lacµ of disclosure

regarding banµ accounts or the proceeds from the sale of his vehicles, we find no

clear error in the district court's determination that he had also failed to meet his

burden of proving that he was unable to pay the fine.

b. The district court's imposition of the ü25,000 fine was reasonable.

See Orlando, 553 F.3d at 1239-40. The district court is required to impose a fine

in all cases in which the defendant does not prove that he is unable to pay. United

States v. Haggard, 41 F.3d 1320, 1329 (9th Cir. 1994). The court does not have to

be explicit about its consideration of each statutory factor under 18 U.S.C. yy 3553

and 3572 and U.S.S.G. y 5E1.2(d). See United States v. Sager, 227 F.3d 1138,

1147-48 (9th Cir. 2000); United States v. Eureµa Labs., Inc., 103 F.3d 908, 913

(9th Cir. 1996); United States v. Ïuan-Guerra, 929 F.2d 1425, 1427 (9th Cir

1991). It is sufficient that the record as a whole indicates that the trial court

7 considered the relevant factors. Sager, 227 F.3d at 1148; Eureµa Labs., 103 F.3d

at 913-14.

In this case, the record does not indicate in any concrete way that imposition

of a fine would cause an undue burden to the defendants' dependents or affect the

defendants' ability to pay state-ordered restitution. Adoption of the PSRs'

recommended ü25,000 fines without explicitly considering these factors was

therefore not unreasonable. See Sager, 227 F.3d at 1147-48 (remanding for

resentencing when the record indicated that a fine would effect the defendant's

family, and the district court had failed to maµe clear whether it had considered

that factor).

We therefore REVERSE Counts Two and Three; AFFIRM Count One;

VACATE AND REMAND FOR RESENTENCING as to Counts One and

Seven; and AFFIRM the imposition of the fines.

8

FILED

United States v. LaBrecque, Nos. 09-10172, 09-10179 MAY 13 2011

MOLLY C. DWYER, CLERK

BEA, Circuit Judge, concurring: U.S . CO U RT OF AP PE A LS

I join the majority as to Parts 2-4 of the memorandum disposition. I concur

in the result as to Part 1, but on different grounds.

The relevant criminal section, 18 U.S.C. y 2251A(a), provides:

(a) Any parent, legal guardian, or other person having custody or control of a minor who sells or otherwise transfers custody or control of such minor, or offers to sell or otherwise transfer custody of such minor either--

(1) with µnowledge that, as a consequence of the sale or transfer, the minor will be portrayed in a visual depiction engaging in, or assisting another person to engage in, sexually explicit conduct . . . .

18 U.S.C y 2251A(a). Similarly, 18 U.S.C. y 2251A(b) criminalizes the same

conduct by the one who 'purchases or otherwise obtains custody or control' of the

minor.

The majority finds there was insufficient evidence that the sexually explicit

visual images of J. were produced 'as a consequence' of a transfer of custody or

control. The majority holds that other interim conduct--namely, J.'s mother's

initiation of the sexually explicit photo shoot--prevented satisfaction of the 'as a

consequence' requirement. I disagree.

Webster's dictionary defines 'consequence' as 'that which follows from any

act, cause, principle, or series of actions; an event or effect produced by some preceding act or cause; a result.' Webster's New Twentieth Century Dictionary of

the English Language Unabridged (Jean L. McKechnie ed., 1979). The evidence

in the record, viewed in the light most favorable to the prosecution, shows that

both Harrod (in California) and LaBrecque (in Texas) µnew that the sexually

explicit photo shoot was intended; and thus, would be a consequence--or a

result--of J.'s trip to Texas. As to Harrod: (1) Harrod informed J.'s mother, prior

to the trip to Texas, that she was to conduct the photo shoot; and (2) Harrod told

J.'s mother when the time was right to conduct the photo shoot. Based on this

evidence, a rational jury could conclude both LaBrecque and Harrod µnew J.'s

sexually explicit depiction would occur as a consequence of his trip to Texas. As

to LaBrecque: (1) LaBrecque pointed out the location of the Polaroid camera to J.'s

mother without being asµed; (2) LaBrecque purchased the film for the camera; (3)

LaBrecque made comments before and after the photo shoot1 which led J. to

believe LaBrecque µnew about the photo shoot; and (4) it was LaBrecque's home

and he was the regional 'patriarch.' Indeed, in Part 2, the majority finds there was

sufficient evidence that 'LaBrecque intended that one of the dominant purposes of

1 When J. was on his way upstairs for the photo shoot, LaBrecque told J. to 'have fun.' J. did not remember the specific comment after the photo shoot, but testified that LaBrecque said something that caused J. to feel 'scared' and to believe that LaBrecque 'µnew what was going on.'

2 the trip was criminal sexual activity involving J..' Memorandum Disposition at 3

(emphasis added). If LaBrecque intended that the photo shoot occur, he certainly

µnew it would be a consequence of J.'s trip to Texas.

I concur in the result as to Part 1, however, because I would hold Harrod did

not 'transfer,' and LaBrecque did not 'obtain,' custody or control of J.. The

evidence shows there was, at most, a partial transfer of custody or control from

Harrod to LaBrecque. J.'s mother was present in the LaBrecque house at all

relevant times. At the time of the photo shoot, the evidence showed J.'s mother

was the one in charge--J.'s mother ordered the participants upstairs into the

bedroom and conducted the photo shoot. A father and mother, living together,

normally have joint custody of their minor child. A father has not 'transfer[red]

custody or control' of his child when the mother is present and actively exercising

custody and control over that child.

An examination of the preceding code section--18 U.S.C. y

2251--reinforces this conclusion. That section provides:

Any parent, legal guardian, or person having custody or control of a minor who µnowingly permits such minor to engage in, or to assist any other person to engage in, sexually explicit conduct for the purpose of producing [child pornography] . . . .

18 U.S.C. y 2251(b) (emphasis added). 'Knowing permission' is what occurred in

3 this case. J. traveled with his mother to Texas, and those who had custody and

control over him 'µnowingly permit[ted]' a sexually explicit photo shoot. Section

2251A, however, punishes an act which is much worse: a purchase, sale, or other

transfer of a minor for purposes of producing child pornography. Id. y

2251A(a)-(b). Accordingly, y 2251A's maximum punishment is life in prison, id.

2251A(c), while y 2251's maximum punishment is 30 years in prison, id. 2251(e).

Therefore, I would hold that although LaBrecque and Harrod µnew the

sexually explicit photo shoot of J. would occur as a consequence of J.'s trip to

Texas, J.'s mother's exercise of custody and control over J. necessarily prevented

a 'transfer' of custody or control. For these reasons, I concur in the reversal of

counts two and three.

4