Opinion · Court of Appeals for the First Circuit
United States v. Joubert
United States v. Joubert, 778 F.3d 247 (1st Cir. 2015)
- Type
- Opinion
- Court
- Court of Appeals for the First Circuit
- Jurisdiction
- Federal
- Date
- 2015-02-11
- Topic
- litigation
finding that the district court did not abuse its discretion in admitting Rule 414(a) evidence "where that testimony showed that the defendant sought a similar type of sexual gratification" | upholding search of electronic devices for evidence of child molestation when affidavit stated that defendant photographed and video-recorded his victims | noting a district court’s authority to later reduce its 3 See Freeman Rule 29 Motion (doc. no. 265) at 2. 2 prior oral findings and rulings to writing (citing In re Mosley, 494 F.3d 1320, 1328 (11th Cir. 2007)) | no abuse of discretion in admitting evidence of similar child molestation acts that allegedly occurred eighteen to twenty years prior to charged conduct | "The significance given to each relevant factor is for the district court, not an appellate court, to decide." | "The rule prohibits the prosecution from introducing evidence that is extrinsic to the crime charged solely for the purpose of showing villainous propensity." (internal quotation marks omitted) | "The rule prohibits the prosecution from introducing evidence that is extrinsic to the crime charged solely for the purpose of showing villainous propensity." (internal quotation marks omitted) | "The uncharged child molestation testimony was probative of [the victim's] veracity because it corroborated aspects of [the victim's] testimony, particularly the nature of the abuse and [the defendant's] modus operandi in approaching his victims." | “The uncharged child molestation testimony was probative of [the victim’s] veracity because it corroborated aspects of [the victim’s] testimony, particularly the nature of the abuse and [the defendant’s] modus operandi in approaching his victims” | “By pointing to national statistics, Joubert compares the sentence for his unique offense to the average sentence for others convicted under the same federal statute. A range of conduct is covered under criminal statutes like 18 U.S.C. §§ 2251(a) [and] 2252A(a)(5)(B
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United States Court of Appeals
For the First Circuit
No. 14-1259
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT JOUBERT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, U.S. District Judge]
Before
Torruella, Howard, and Kayatta,
Circuit Judges.
Judith H. Mizner, Assistant Federal Public Defender, for
appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.
February 11, 2015
KAYATTA, Circuit Judge. Robert Joubert was convicted of
three counts of sexual exploitation of children, in violation of 18 U.S.C. § 2251
(a), and one count of possession of child pornography,
in violation of 18 U.S.C. § 2252A(a)(5)(B). On appeal, Joubert
raises four issues: (1) the search warrant failed to supply a nexus
to the place being searched; (2) the district court abused its
discretion in admitting testimony of uncharged child molestation;
(3) the Commerce Clause cannot support application to him of the
federal criminal statutes under which he was indicted; and (4) his
480-month sentence was substantively unreasonable. We affirm his
conviction and sentence in all respects.
I. Background
A. Investigation and Search1
In March 2012, a mother in Concord, New Hampshire, e-
mailed York, Maine, police to complain about Joubert, a baseball
coach working in the area. Joubert used to coach and mentor the
woman's son, KC. She called Joubert a pedophile, and said that New
Hampshire police previously investigated him multiple times for
similar allegations.
Over the course of the next four months, an investigation
by local police and the Federal Bureau of Investigation ("FBI")
turned up a series of reports and complaints that Joubert molested
1
The affidavit supporting the search warrant application
outlines the following details from the investigation.
-2-
or harassed various children, including the complainant.
Authorities proceeded to interview many of the alleged victims, as
well as their parents. They learned that Joubert engaged in a
pattern of abuse, usually gaining trust within a victim's family,
and then proceeding to exploit that position of trust. Law
enforcement officials also learned that Joubert often photographed
and videotaped his young charges. During the investigation,
Joubert himself contacted police. Police and FBI interviewed him
in late March, asking questions about his background, baseball
pedigree, and previous employment. According to the affidavit,
Joubert was "evasive" and "at times confrontational."
Starting in June 2012, the FBI and York police worked
with SJ, Joubert's 36-year-old non-biological son, who claimed that
Joubert molested him on two occasions in the mid-1980's. SJ
reported that Joubert lived at Joubert's parents' home, in
Manchester, New Hampshire. In late May or early June, SJ helped
Joubert move to that address. SJ also reported that, upon learning
of the investigation, Joubert became "anxious" and "very concerned"
about destroying his computer's hard drive. Joubert told SJ that
he was concerned about protecting "client" information. While in
SJ's presence, "Joubert tore apart the computer tower." He removed
components, threw away the computer tower, and then stacked the
removed components inside his parents' home. SJ did not see
Joubert discard the computer components.
-3-
In late June 2012, police applied for a warrant to search
Joubert's parents' home. The warrant application sought permission
to search for several categories of evidence including: "[a]ny and
all computers or related storage devices and media"; "[a]ny and all
cameras . . . including cassette tapes, VCR/VHS tapes"; and "[a]ny
and all photographs, electronic images, and videos of minors/
juveniles/ youth/ youth groups that Robert Joubert has or may have
had contact with." Appended to the application was a 14-page
affidavit, detailing the joint FBI-police investigation into
Joubert.
The affidavit chronicled the numerous complaints against
Joubert, the reports of his photographing and videotaping youths,
and the information conveyed by SJ, described above. In the final
paragraphs of the affidavit, the officer-affiant stated that,
"[b]ased on [his] training and experience, and supported by the
actions of the suspect in this investigation, [he knows] that
persons engaged in the molestation and exploitation of . . . minors
often maintain possession and/or control of physical or electronic
documents pertaining to their victims and other juveniles." The
officer-affiant went on to state:
I believe that evidence of the crime(s) of
Felonious Sexual Assault exists. I believe
the aforementioned evidence exists in the
possession, control, care and/or custody of
Robert Joubert. I believe that the evidence
exists in the form of, but not limited to;
physical and electronic documents and other
property. The evidence may confirm or dispel
-4-
Robert Joubert's background (employment,
resume claims, sport/coaching qualification
and credentials), the allegation made against
him involving juveniles, his travels, his
relationship(s) with minors/juveniles and the
victims mentioned in this affidavit, confirm
his relationship with already identified
victims, and identify other potential (yet
unknown) victims.
Based on the affidavit, a New Hampshire judge issued a warrant to
search Joubert's parents' home for "evidence of the crime(s) of
Aggravated Felonious Sexual Assault . . . and other Sexual
crimes[.]" On June 28, 2012, police executed that search, seizing
photographs, a laptop computer, computer drives, and VHS tapes,
among other items. Of the items seized, most incriminating was a
pornographic VHS recording of KC and Joubert.
B. Charged Conduct
Joubert coached KC's baseball team in Summer 2002, when
KC was 9 or 10 years old. After the season ended Joubert sought to
maintain a "big brother"-type relationship with KC. Joubert
eventually moved into KC's home, where KC lived with his single
mother. According to KC's mother, Joubert frequently videotaped
her kids. After some time, Joubert started coercing KC into
performing sexual favors in exchange for food or new sports
equipment. Joubert became "obsessive with [KC]" and KC's mother
ultimately kicked Joubert out in the summer of 2004. The seized
VHS tape contained segments where Joubert places KC's hand on
Joubert's penis.
-5-
On the basis of Joubert's possessing and producing a VHS
tape containing child pornography, a grand jury indicted Joubert on
three counts of sexual exploitation of a child to produce a visual
depiction, in violation of 18 U.S.C. § 2251
(a), and one count of
possession of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B). Specifically, the indictment charged that on two
unknown dates, between November 2002 and April 2003, and between
September and August 2004, Joubert coerced KC to engage in sexually
explicit conduct for the purpose of making "visual depiction[s] of
such conduct, to wit, a video depicting masturbation." The
indictment also charged that on an unknown date between November
2002 and April 2003, Joubert coerced KC to engage in sexually
explicit conduct for the purpose of making "a visual depiction of
such conduct, to wit, a video recording depicting a lewd or
lascivious exhibition of [KC's] genital or pubic area."
C. Trial and Sentencing
During pre-trial, Joubert moved to suppress items seized
pursuant to the search warrant--including the VHS tape--arguing
that the affidavit did not supply a sufficient nexus between the
alleged crimes and the location being searched. The district court
denied his motion. At trial, and over objection, the court
admitted uncharged sexual misconduct testimony from SJ and two
other victims, MT and NT. KC also testified during trial,
identifying himself and Joubert in the illicit VHS recording.
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After a three-day trial, Joubert was found guilty. The pre-
sentence investigation report's Guidelines sentence was 960 months.
The government recommended a 540-month sentence, but the district
court varied further downward, sentencing Joubert to 480 months in
prison.
II. Analysis
A. The Constitutionality of the Search Warrant
The Fourth Amendment to the United States Constitution
provides that "[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized." U.S. Const. amend. IV. Prior to executing
a search, police officers, with some exceptions, must obtain a
search warrant supported by probable cause to believe that (1) a
crime has been committed, and (2) that "enumerated evidence of the
[crime] will be found at the place to be searched--the so-called
'nexus' element." United States v. Hicks, 575 F.3d 130, 136
(1st
Cir. 2009).
Joubert challenges the district court's finding that the
affidavit established probable cause to search his parents' house.
When evaluating the nexus between the object and the location of
the search, "a magistrate [judge] has to make a practical, common-
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sense decision whether, given all the circumstances set forth in
the affidavit before him, . . . there is a fair probability that
contraband or evidence of a crime will be found in a particular
place." United States v. Rodrigue, 560 F.3d 29, 33
(1st Cir. 2009) (citations and internal quotation marks omitted). "[T]he application must give someone of reasonable caution reason to believe that evidence of a crime will be found at the place to be searched."Id.
(citations and internal quotation marks omitted). The government does not need to show that the belief is "necessarily correct or more likely true than false." United States v. Lyons,740 F.3d 702, 723
(1st Cir. 2014) (quoting United States v. Feliz,182 F.3d 82, 87
(1st Cir. 1999)); see also Spinelli v. United States,393 U.S. 410, 419
(1969). Nexus "can be inferred from the type of crime, the nature of the items sought, the extent of an opportunity for concealment[,] and normal inferences as to where a criminal would hide [evidence of a crime.]" United States v. Charest,602 F.2d 1015, 1017
(1st Cir. 1979). The reviewing court's duty is "simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed." Illinois v. Gates,462 U.S. 213, 238
(1983); Lyons,740 F.3d at 723
. And in making this inquiry, we focus on the facts and supported opinions in the affidavit, ignoring "unsupported conclusions." United States v. Vigeant,176 F.3d 565, 571
(1st Cir. 1999) (citing Gates,462 U.S. at 239
).
-8-
Joubert rests his nexus challenge on four contentions.
We address each contention in turn.
First, Joubert argues that a nexus is lacking because the
affidavit contains no allegations that he committed any offenses at
the location being searched. But Joubert misidentifies the
relevant inquiry. The question is whether evidence of the crime is
likely to be found in the specific place being searched, not
whether the crime occurred there. See Zurcher v. Stanford Daily,
436 U.S. 547, 556-57
(1978); Feliz, 182 F.3d at 86–88 (1st Cir. 1999); see also United States v. Kapordelis,569 F.3d 1291, 1310
(11th Cir. 2009) ("There need not be an allegation that the illegal
activity occurred at the location to be searched, for example the
home"). As we explain below in rejecting Joubert's third argument,
there was indeed such a likelihood.
Second, Joubert argues that there is no reason to believe
that he would have preserved the photos and videos discussed in the
affidavit. But photos and videos, by their very nature, are items
customarily created for preservation. See United States v.
Beckett, 321 F.3d 26, 32
(1st Cir. 2003) (noting that the fact that
a notebook can "reasonably be viewed as [an] item[] created for
preservation" supports the possibility that it would have been
retained over the years). As such, allegations regarding
photographic or video recordings do not suffer from the staleness
problems that sometimes arise in other contexts. Cf. United States
-9-
v. Brooks, 594 F.3d 488, 493
(6th Cir. 2010) ("In the context of
drug crimes, information goes stale very quickly because drugs are
usually sold and consumed in a prompt fashion.") (internal
quotation marks omitted). The nature of the items sought here
supports a common-sense inference that the items would endure among
Joubert's belongings. See Beckett, 321 F.3d at 32
.
Third, Joubert claims that there is no reason to think he
would have kept the photos at his parents' home. But the affidavit
indicated that Joubert lived there, and as the Eleventh Circuit has
explained:
The justification for allowing a search of a
person's residence when that person is
suspected of criminal activity is the common-
sense realization that one tends to conceal
fruits and instrumentalities of a crime in a
place to which easy access may be had and in
which privacy is nevertheless maintained. In
normal situations, few places are more
convenient than one's residence for use in
planning criminal activities and hiding fruits
of a crime.
Kapordelis, 569 F.3d at 1310
(quoting United States v. Green,634 F.2d 222, 226
(5th Cir. Unit B 1981)). In addition, the affidavit
indicated that SJ recently helped Joubert move his belongings to
that address and that Joubert, upon learning of the investigation,
became very anxious and sought SJ's help in wiping or destroying
his hard drive. While at Joubert's parents' home, SJ saw Joubert
"[tear] apart the computer tower," removing components; SJ did not
see Joubert dispose of the removed computer components. With this
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information, the magistrate judge had a substantial basis for "a
practical, common-sense decision," Rodrigue, 560 F.3d at 33
, that
evidence of child molestation would likely be found at that
address.
Finally, Joubert argues that there is no reason to
suspect he had any inappropriate photos because the affidavit
lacked any allegations concerning child pornography or
photographing sexual contacts. The affidavit's only photographing
allegations are of photographing at athletic events, at the beach,
or similar settings. This argument misses the mark completely. To
start with, this argument is not a challenge to the nexus with the
location, but rather a challenge to the specification of an object
of the search.
Even allowed as such, the argument fails because
photographs of any type of any of the suspected victims would
provide evidence of the crimes specified. Even otherwise innocuous
pictures of Joubert and his accusers would be relevant (albeit
insufficient) evidence for building a case that the alleged abuse
actually occurred because such pictures would preclude the
possibility that Joubert never knew nor was in contact with the
accusers. See Fed. R. Evid. 401 ("Evidence is relevant if: (a) it
has any tendency to make a fact more or less probable than it would
be without the evidence; and (b) the fact is of consequence in
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determining the action."). It therefore does not matter that the
affidavit contained no allegations of child pornography.2
B. Uncharged Child Molestation Evidence
At trial, the district court admitted, over objection,
testimony from three other victims, MT, NT, and SJ. Joubert argues
that, notwithstanding Federal Rule of Evidence 414, the district
court erred, under Federal Rule of Evidence 403, by admitting this
uncharged child molestation testimony. He contends that the
testimony was unfairly prejudicial, that it "invite[d] the jury to
render a verdict on an improper emotional basis." United States v.
Varoudakis, 233 F.3d 113, 122
(1st Cir. 2000). Where, as here, an evidentiary objection is preserved, we review the district court's decision for abuse of discretion, "reversing if we are 'left with a definite and firm conviction that the court made a clear error of judgment.'" United States v. Burdulis,753 F.3d 255, 263
(1st Cir. 2014) (quoting United States v. Trenkler,61 F.3d 45, 57
(1st Cir. 1995)). An appellate court gives "great deference" to a district court's balancing of probative value versus unfair prejudice. United States v. Breton,740 F.3d 1, 14
(1st Cir. 2014).
Ordinarily, the Federal Rules of Evidence prohibit using
a person's prior acts "to prove a person's character in order to
2
Finding the search warrant affidavit sufficient, we
necessarily reject Joubert's second argument, that the affidavit
was so patently lacking in probable cause that it cannot fall
within the "good faith" exception of United States v. Leon, 468 U.S. 897
(1984).
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show that on a particular occasion the person acted in accordance
with the character." Fed. R. Evid. 404(b)(1); see also United
States v. Gonyer, 761 F.3d 157, 162
(1st Cir. 2014). "The rule prohibits the prosecution from introducing evidence that is extrinsic to the crime charged solely for the purpose of showing villainous propensity." Gonyer,761 F.3d at 162
(internal quotation marks omitted). Rule 414 provides an exception to this general rule in child molestation cases. See Martínez v. Cui,608 F.3d 54, 59
(1st Cir. 2010) (applying Rule 415, Rule 414's counterpart for civil cases); see also United States v. Davis,624 F.3d 508
, 511–12 (2d Cir. 2010); United States v. Rogers,587 F.3d 816, 822
(7th Cir. 2009) ("Congress has said that . . . it is not
improper to draw the inference that the defendant committed this
sexual offense because he has the propensity to do so.").
Rule 414 provides that "[i]n a criminal case in which a
defendant is accused of child molestation, the court may admit
evidence that the defendant committed any other child molestation.
The evidence may be considered on any matter to which it is
relevant." This Rule 414 evidence remains subject to Rule 403's
balancing between probative value and unfair prejudice. United
States v. Jones, 748 F.3d 64, 70
(1st Cir. 2014); see generally
Fed. R. Evid. 403 ("The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues,
-13-
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence."). District courts are to apply
Rule 403 to Rule 414 evidence with a recognition that Rule 414
"reflects a congressional judgment to remove the propensity bar to
admissibility of certain evidence." Cui, 608 F.3d at 59
.
Joubert argues that the uncharged child molestation
testimony's prejudicial effect outweighed its probative value for
three reasons: (1) the allegations are old,3 and thus not
particularly probative; (2) the evidence was of limited probative
value in light of the central contested issue at trial; and (3) the
uncharged molestation testimony overshadowed the evidence of
charged conduct, overwhelming the jury and resulting in unfair
prejudice to Joubert.
First, the age of MT, NT, and SJ's allegations does not
necessarily mean that the district court abused its discretion in
admitting the evidence. Other courts have admitted testimony from
decades earlier where that testimony showed that the defendant
sought a similar type of sexual gratification. See, e.g., Davis,
624 F.3d at 512
(admitting evidence of a child molestation that
occurred 19 years prior). In the context of the evidence here, the
3
The abuse against MT allegedly occurred 6–9 years prior to
the charged conduct. The abuse against NT allegedly occurred about
10 years prior to the charged conduct. The abuse against SJ
allegedly occurred about 18–20 years prior to the charged conduct.
-14-
age of the allegations alone is insufficient to prove the district
court abused its discretion.
Second, because Joubert's defense was that he did not
commit the crimes against KC, evidence bearing on KC's veracity was
probative to determining whether Joubert indeed produced and
possessed the illicit recording. The uncharged child molestation
testimony was probative of KC's veracity because it corroborated
aspects of KC's testimony, particularly the nature of the abuse and
Joubert's modus operandi in approaching his victims. Given these
corroborating aspects of the witnesses' testimony, the district
court did not abuse its discretion under Rule 403 in finding that
the uncharged molestation testimony's probative value outweighed
any unfair prejudicial effect.
Third, although the district court's admission of
testimony from three other victims strikes us as potentially
cumulative, the district court is in much better position to make
such judgments. "[T]he balancing act called for by Rule 403 is a
quintessentially fact-sensitive enterprise, and the trial judge is
in the best position to make such factbound assessments." United
States v. Vizcarrondo-Casanova, 763 F.3d 89, 94
(1st Cir. 2014) (quoting United States v. Martin,695 F.3d 159, 165
(1st Cir.
2012)). The district court's decision here is far from "the type
of 'exceptional circumstance' that calls for reversal based on such
-15-
an evidentiary ruling." Id.
(quoting United States v. Houle,237 F.3d 71, 77
(1st Cir. 2001)).4
To be sure, the testimony was very prejudicial. But in
light of Rule 414, we cannot say it was unfairly so. See United
States v. Morales-Aldahondo, 524 F.3d 115, 120
(1st Cir. 2008)
(noting that "[i]n balancing the scales of Rule 403, it is
important to note that only unfair prejudice is to be avoided, as
by design, all evidence is meant to be prejudicial") (internal
quotation marks omitted).
C. Jurisdiction
Joubert preserves for Supreme Court review an argument
that the VHS tape made out-of-state--the sole connection to
interstate commerce--is insufficient to support application to him
of the federal criminal statutes under which he was indicted. The
federal prohibition on child pornography applies broadly to any
person who:
knowingly possesses, or knowingly accesses
with intent to view, any book, magazine,
periodical, film, videotape, computer disk, or
any other material that contains an image of
child pornography that has been mailed, or
shipped or transported using any means or
facility of interstate or foreign commerce or
4
Joubert also argues that the district court erred by
admitting testimony from his son, SJ, which he contends was
particularly prejudicial. For the same reasons already mentioned,
we do not think the unfair prejudice, if any, outweighed the
probative value of SJ's testimony of uncharged child molestation.
Joubert, therefore, has not demonstrated that the district court
abused its discretion.
-16-
in or affecting interstate or foreign commerce
by any means, including by computer or that
was produced using materials that have been
mailed, or shipped or transported or in or
affecting interstate or foreign commerce by
any means, including by computer . . . .
18 U.S.C. § 2252A(a)(5)(B). We give de novo review to
constitutional challenges to a federal statute. United States v.
Rene E., 583 F.3d 8, 11
(1st Cir. 2009).
This court recently held that the interstate commerce
element is satisfied by the copying of child pornography onto a
thumb drive that had traveled interstate. See United States v.
Burdulis, 753 F.3d 255, 262
(1st Cir. 2014), cert. denied,135 S. Ct. 467
(2014). Most circuits to consider the question have come to the same conclusion. See United States v. Dickson,632 F.3d 186
, 189–90 (5th Cir. 2011); accord United States v. Caley,355 F. App'x 760, 761
(4th Cir. 2009); United States v. Maxwell,446 F.3d 1210, 1219
(11th Cir. 2006); United States v. Angle,234 F.3d 326, 341
(7th Cir. 2000); United States v. Lacy,119 F.3d 742, 750
(9th Cir. 1997). Indeed, Joubert correctly conceded at oral argument that we would have to overturn our decision in Burdulis to rule in his favor on this issue. No relevant distinction suggests that a VHS tape as employed here provides less of a nexus to interstate commerce than the thumb drive in Burdulis. We therefore find the rejection of Joubert's challenge prescribed by our earlier decision in Burdulis. See United States v. Wogan,938 F.2d 1446, 1449
(1st
Cir. 1991) ("[P]rior panel decisions are binding upon newly
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constituted panels in the absence of supervening authority
sufficient to warrant disregard of established precedent.").
D. 480-Month Sentence
Finally, Joubert challenges the substantive
reasonableness of his 480-month sentence. We review the
substantive reasonableness of a sentence for an abuse of
discretion. United States v. King, 741 F.3d 305, 307-08
(1st Cir. 2014). "[T]he linchpin of a reasonable sentence is a plausible sentencing rationale and a defensible result." United States v. Martin,520 F.3d 87, 96
(1st Cir. 2008). "We remember that there is no single reasonable sentence in a particular case but, rather, a universe of reasonable outcomes." United States v. Batchu,724 F.3d 1, 13
(1st Cir. 2013) (internal quotation marks omitted). "When, as in this case, a district court essays a substantial downward variance from a properly calculated guideline sentencing range, a defendant's claim of substantive unreasonableness will generally fail." United States v. Floyd,740 F.3d 22
, 39–40 (1st
Cir. 2014).
In making this challenge, Joubert argues several points:
(1) that the district court gave short shrift to mitigating
factors; (2) that his sentence is statistically longer than the
national average; and (3) that a 480-month sentence is an effective
life term for 60-year-old Joubert, and thus is too harsh.
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Joubert points to several mitigating factors that he
thinks the district court underappreciated: his advanced age, his
obligations to elderly parents, the non-violent nature of his
recordings, and the fact that he never distributed the illicit
recordings. But the district court did explicitly consider such
factors. It weighed Joubert's mitigating factors against his
aggravating factors, including that he repeatedly, over the course
of decades, used his coaching positions to sexually abuse minors.
"That the sentencing court chose not to attach to certain of the
mitigating factors the significance that the appellant thinks they
deserved does not make the sentence unreasonable." United States
v. Clogston, 662 F.3d 588, 593
(1st Cir. 2011). The significance given to each relevant factor is for the district court, not an appellate court, to decide. United States v. Dixon,449 F.3d 194, 205
(1st Cir. 2006).
Even if sex offenders have, on average, shorter sentences
than Joubert, that tells us little about the substantive
reasonableness of Joubert's sentence. "A well-founded claim of
disparity . . . assumes that apples are being compared to apples."
United States v. Mateo-Espejo, 426 F.3d 508, 514
(1st Cir. 2005). By pointing to national statistics, Joubert compares the sentence for his unique offense to the average sentence for others convicted under the same federal statute. A range of conduct is covered under criminal statutes like18 U.S.C. §§ 2251
(a), 2252A(a)(5)(B).
-19-
This comparison is thus unhelpful for determining the substantive
reasonableness of Joubert's sentence for his unique crime. See
Dixon, 449 F.3d at 205
(noting that "sentencing determinations hinge primarily on case-specific and defendant-specific considerations"). Moreover, Joubert is far from alone in receiving a lengthy sentence for similar conduct. See, e.g., United States v. Klug,670 F.3d 797, 800
(7th Cir. 2012) (holding that a 384-
month sentence for producing child pornography depicting "children
dressing and undressing" was reasonable).
Finally, the fact that a 480-month sentence is just as
much a life term for 60-year-old Joubert as a 960-month sentence
does nothing to establish that Joubert's 480-month sentence was
substantively unreasonable. The sentencing of a defendant involves
more considerations than simply the effect of that sentence on the
defendant. See 18 U.S.C. § 3553
(a)(2). The district court may consider the perception and effect that the punishment may have on the general public, even if for the defendant, the practical effect is minimal or non-existent. See, e.g., United States v. Politano,522 F.3d 69, 74
(1st Cir. 2008). Noting the "compulsive" nature of Joubert's behavior, the district court purposefully fashioned the sentence so that Joubert would never again have contact with young boys. That certainly is a plausible rationale for a defensible result. See Martin,520 F.3d at 96
. We thus find that the
-20-
district court did not abuse its discretion in sentencing Joubert
to 480 months.
III. Conclusion
For the aforementioned reasons, we affirm.
- Concurring Opinion Follows -
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TORRUELLA, Circuit Judge (Concurring). I join the
court's opinion in full but write separately to note my
disagreement with the state of our Commerce Clause jurisprudence.
It seems counterintuitive that interstate commerce is
affected when Joubert purchases a VHS videotape in New Hampshire,
records on the VHS videotape in New Hampshire, and neither sells
nor attempts to sell the VHS videotape outside of New Hampshire.
Indeed, the only argument in support of a connection to interstate
commerce is that, in aggregate, this type of behavior has an effect
on interstate commerce. This borders on the farcical, as the
evidence suggests that the content of the videotape was made
exclusively for Joubert's own personal use. Any commonsense
understanding of "interstate commerce" excludes the conduct at
issue here.
Yet, as the court correctly notes, and Joubert himself
concedes, this court and most (if not all) of the other circuits
have found this connection perfectly acceptable, and thus
constitutional. See ante, at 17 (collecting cases from other
circuits). This "link" to interstate commerce, which is tenuous at
best, also effectively gives the federal government unlimited
jurisdiction, since there is very little in today's society that,
when aggregated, would have no impact on interstate commerce. We
have put aside common sense in order to federalize conduct which we
believe needs to be punished.
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Let there be no doubt: I am in full agreement that the
behavior Joubert was convicted of must be punished, and punished
harshly. This punishment, however, should be meted out by the
state under its plenary police power, and not by the federal
government with its limited jurisdictional reach.5 See United
States v. López, 514 U.S. 549, 552
(1995) ("The powers delegated by
the proposed Constitution to the federal government are few and
defined. Those which are to remain in the State governments are
numerous and indefinite." (quoting The Federalist No. 45, at 292-93
(James Madison) (Clinton Rossiter ed., 1961))).
Recent Supreme Court cases suggest a push in this
direction. See, e.g., Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2591
(2012) ("Although the [Commerce] Clause gives
Congress authority to legislate . . . , it does not license the
exercise of any great substantive and independent power[s] beyond
those specifically enumerated. Instead, the Clause is merely a
declaration . . . that the means of carrying into execution those
[powers] otherwise granted are included in the grant." (second and
third alterations in the original) (internal citations and
quotation marks omitted)); United States v. Morrison, 529 U.S. 598
,
5
This is not a situation where if the federal government did
not have jurisdiction, the crime would go unpunished. The
investigation began with police in York, Maine, and it continued as
a joint state/federal task force. I have little doubt that had the
FBI not been involved and had not brought these federal charges,
state prosecutors would have brought charges.
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617-18 (2000) ("We accordingly reject the argument that Congress
may regulate noneconomic, violent criminal conduct based solely on
that conduct's aggregate effect on interstate commerce. The
Constitution requires a distinction between what is truly national
and what is truly local."); López, 514 U.S. at 567
("Respondent was
a local student at a local school; there is no indication that he
had recently moved in interstate commerce, and there is no
requirement that his possession of the firearm have any concrete
tie to interstate commerce."). Given this trend of narrowing the
reach of the Commerce Clause, I believe this court should
reevaluate its precedents and lead the return to a more faithful
reading of the term "interstate commerce."
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