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Defendant challenges the sufficiency of the indictment

In U.S. v. Bailey, defendant appealed his convictions for sexual exploitation of a child and possession of child pornography in violation of 18 U.S.C § 2251(a) and 18 U.S.C § 2252A(a)(5)(B) respectively. He argued that the indictment was insufficiently clear and that there was insufficient evidence to support his conviction on one of the counts.

After a bench trial, the district court made findings of fact that defendant video recorded the child victim after living her note instructing where and when to masturbate. He was seen in one recording giving the victim money in order to induce her to masturbate. He is also heard in the recording, telling her that she had better hurry up and masturbate.

First he challenges the sufficiency of the indictment. Bailey concedes that his challenge is made for the first time on appeal, and therefore the court of appeals review is limited. His challenge has two parts. First is count one through four. He argues that the language of each of said counts is identical with the exception of the time frame during which the alleged crime occurred. Because there was overlap in those time periods, he argues that he had insufficient factual information to tell which count charged the crime depicted in Government exhibits, he argues that he had insufficient notice to prepare his defense and also that he would be unable to invoke the protections of double jeopardy in the event of a future prosecution. The court of appeals rejected his arguments because it can prevail only if he could show he suffered actual prejudice as a result of the indictment and he cannot do this. He knew precisely which of the four video images were charged in each count. The images on each of the four Government exhibits were distinctive, and readily distinctive from the others and he will have no trouble obtaining double jeopardy protection in the event of any future prosecution.

In the second part challenge to the indictment he challenged count five arguing it was defective because it fails to factually identify the specific image charged. The indictment notified Bailey that he had child pornography that he was charged with possessing appeared on a specifically identify computer and two videotapes that were in his possession at the time of his arrest. The court of appeals concluded that the challenge was without merit. He had ample notice of the charge against which he must defend.

In his challenge with respect to count four he argued that there was insufficient evidence to support conviction based on the district court’s finding that exhibit 4 does not show S.C. actually masturbating. Baileys argues that a violation of 18 U.S.C. § 2251(a) requires that a minor actually masturbate in the visual depiction. The district court held that it was sufficient for the government to prove that the defendant “knowingly induce and enticed her to masturbate”. The court of appeals view the evidence in the light must favorable to the Government and resolved all reasonable inferences and credibility evaluations in favor of the verdict. “Evidence is sufficient to support a conviction if a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt.” The court agrees with district court. The conduct depicted in exhibit 4, clearly shows Bailey inducing and enticing S.C. to masturbate. That conduct falls within the plain meaning of the language of the statute.

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