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Case: 13-12613 Date Filed: 10/27/2014 Page: 1 of 25





No. 13-12613


D.C. Docket No. 2:12-cr-14054-KMM-1







Appeal from the United States District Court for the Southern District of Florida ________________________

(October 27, 2014) Before MARTIN, Circuit Judge, and EATON, * Judge, and HINKLE, ** District Judge.

* Honorable Richard K. Eaton, United States Court of International Trade Judge, sitting by designation.

** Honorable Robert L. Hinkle, United States District Judge for the Northern District of Florida, sitting by designation.

Case: 13-12613 Date Filed: 10/27/2014 Page: 2 of 25

MARTIN, Circuit Judge:

Cameron Dean Bates is a federal prisoner serving a 240-month sentence after being convicted of eighteen counts of receiving, accessing, distributing, and possessing child pornography, in violation of 18 U.S.C. § 2252A. He is also a man who has had sexual relationships with other adult men, a fact that came to be a central issue during his criminal trial. He challenges his convictions on several grounds. But we need only consider his argument that he should have been permitted to inquire of potential jurors whether they might harbor prejudice against men who have sex with men. Specifically, Mr. Bates argues that the District Court abused its discretion when it refused his request to ask prospective jurors during voir dire about any prejudice they might harbor against him on the basis of his sexual activity with other men. After careful review, and with the benefit of oral argument, we agree with Mr. Bates that the District Court should have examined whether the jurors might bear prejudices against him. While it is true that Mr.

Bates stands charged and convicted of disturbing acts of receiving and distributing child pornography, we cannot condone the manner in which his convictions were obtained. As a result, we vacate the convictions.


In 2011, the government got information thatMr. Bates was downloading and sharing files depicting child pornography using the internet. With help from Case: 13-12613 Date Filed: 10/27/2014 Page: 3 of 25 Mr. Bates’s internet providers, the government linked several downloads of child pornography to a computer in Mr. Bates’s home as well as a computer in the home of Samuel Gruen, 1 for whom Mr. Bates worked and with whom he had earlier had a sexual relationship. Over a year after the investigation began, the government got a warrant to search Mr. Bates’s home, permitting the seizure of any device capable of downloading or distributing child pornography. Indeed, the government relied on the warrant to seize and review the contents of a laptop computer.

Investigators discovered the many pornographic pictures and videos they expected to find. But they also discovered many files revealing intimate details about Mr. Bates’s personal life. For example, the government discovered evidence indicating that Mr. Bates used the internet to meet other men, including Craigslist postings that revealed Mr. Bates’s preferred role in sexual relationships. The government also learned that Mr. Bates sometimes wore women’s clothing.

Finally, and important here, the government discovered photos of Mr. Bates engaged in sex acts with other men.

Before trial, Mr. Bates filed a motion to exclude from evidence images depicting him “in sexual activity, nude or in sexual attire,” because some people would consider it “shocking or offensive.” Given the prejudice some people The government’s investigation also indicated that Mr. Gruen’s neighbor’s internet connection was used to access child pornography. Her internet connection was not password protected, and so could be used by anyone within range of the wireless signal. The neighbor testified that she never used her internet connection to access child pornography.

Case: 13-12613 Date Filed: 10/27/2014 Page: 4 of 25 harbor against homosexual and bisexual people, as well as those who engage in gender non-conforming behavior, Mr. Bates worried that the evidence would unfairly prejudice him. The District Court denied the motion, ruling that evidence of Mr. Bates’s private life on his computer “is relevant and probative to establish, inter alia, ownership, possession and identity and such evidence is not unfairly prejudicial.” In essence, the government’s theory was that Mr. Bates was the person using the computer to download child pornography, because he wouldn’t have allowed anyone else to use a computer that held such private content.

After his motion to exclude evidence was denied, Mr. Bates expected evidence of his private life to come out during the trial. He therefore asked the District Court to pose questions to prospective jurors during voir dire about their views on homosexuality, as well as sexual preferences and behavior. The District Court refused to “get into that at this stage.” Mr. Bates persisted, pointing out that if the Court refused his request then he would “be prejudiced perhaps by not knowing what the preferences of the jurors are.” The District Court responded— curiously, in light of its consideration and ruling on Mr. Bates’s motion to exclude evidence—that it did not “know what that has to do with this case.” After both Mr.

Bates and the government reminded the District Court about the evidence the government intended to present, the Court still declined to inquire of the prospective jurors about whether this evidence of Mr. Bates’s sexual activity

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would prejudice their consideration of his case.2 During the trial, evidence of Mr.

Bates’s sexual relationships with men, the sexually explicit photographs of himself stored on his computer, and his efforts to meet men online was repeatedly paraded before the jury, over several objections from Mr. Bates. After eight days of testimony, the jury convicted Mr. Bates on all counts.

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Jury selection is the primary means by which our judicial system enforces a defendant’s constitutional right to be tried by a jury free from prejudices which might unfairly influence its determination of his guilt or innocence. Gomez v.

United States, 490 U.S. 858, 873, 109 S. Ct. 2237, 2246 (1989); see also Murphy v. Florida, 421 U.S. 794, 799, 95 S. Ct. 2031, 2036 (1975) (“The constitutional standard of fairness requires that a defendant have a panel of impartial, indifferent jurors.” (quotation marks omitted)). Although the conduct of voir dire is “left to Our friend in dissent characterizes Mr. Bates’s conduct at voir dire as “acquiescence in” the District Court’s decision not to ask questions about juror prejudice, or at least “surely close” to acquiescence. See Dissenting Op. at 3. We do not see it that way. Mr. Bates stated that he thought the District Court “should be asking some questions relative to homosexuality and preferences of people and so forth.” After the District Court’s initial refusal, Mr. Bates persisted, as we have noted, by explaining that he feared prejudice if no questions were asked. To preserve an objection for appeal, we require a litigant only to “raise [his] point in such clear and simple language that the trial court may not misunderstand it,” so as to prevent the trial court from “fail[ing] to grasp” the point. United States v. Zinn, 321 F.3d 1084, 1087–88 (11th Cir. 2003) (quotation omitted). Telling a District Judge that you “think [he] should be asking some questions relative to homosexuality and preferences and so forth,” as Mr. Bates did, is stating the point in clear and simple language that could not be misunderstood. Indeed, it is clear that the District Judge in fact understood the request: he specifically denied it, explaining that he didn’t see what “questions of homosexuality... [had] to do with this case.” Case: 13-12613 Date Filed: 10/27/2014 Page: 6 of 25 the sound discretion of the trial court,” United States v. Vera, 701 F.2d 1349, 1355 (11th Cir. 1983), we will reverse a defendant’s conviction if it does not meet minimum constitutional requirements. At a minimum, the District Court’s voir dire must “provide reasonable assurance that prejudice will be discovered if present.” United States v. Hill, 643 F.3d 807, 836 (11th Cir. 2011). When deciding whether a defendant’s conviction should be reversed, “the central inquiry is whether the district judge’s overall examination, coupled with his charge to the jury, affords a party the protection sought.” United States v. Delval, 600 F.2d 1098, 1102–03 (5th Cir. 1979) (quotation marks omitted).3 In his trial, Mr. Bates was not afforded the minimum protection our law requires.

To decide whether the District Court is required to ask questions about a specific, potentially prejudicial topic, we must consider whether “juror prejudices are reasonably suspected.” United States v. Ochoa-Vasquez, 428 F.3d 1015, 1037 (11th Cir. 2005). To answer this question, we look to all of the circumstances of the case to see if there is “a constitutionally significant likelihood that, absent questioning about [the potential] prejudice, the jurors would not be indifferent as they stand unsworne.” Ristaino v. Ross, 424 U.S. 589, 596, 96 S. Ct. 1017, 1021 (1976) (alteration marks omitted) (quotation marks omitted). This depends on In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.

Id. at 1209.

Case: 13-12613 Date Filed: 10/27/2014 Page: 7 of 25 whether the evidence is (1) in fact a potential source of prejudice, and (2) “inextricably bound up” with the evidence to be presented at trial. Id. at 597, 96 S.

Ct. at 1021; see also Ham v. South Carolina, 409 U.S. 524, 533, 93 S. Ct. 848, 854 (1973) (Marshall, J., concurring in part and dissenting in part) (“The trial judge has broad discretion to refuse to ask questions that are irrelevant or vexatious. Thus, where the claimed prejudice is of a novel character, the judge might require a preliminary showing of relevance or of possible prejudice before allowing the questions.” (footnote omitted)); United States v. Robinson, 475 F.2d 376, 381 (D.C. Cir. 1973) (“The possibility of prejudice is real, and there is consequent need for a searching voir dire examination, in situations where, for example, the case carries racial overtones, or involves other matters concerning which either the local community or the population at large is commonly known to harbor strong feelings that may stop short of presumptive bias in law yet significantly skew deliberations in fact.” (footnotes omitted)).

In this case, the District Court optimistically declared that our society is beyond prejudice on the basis of a person’s sexual orientation. While we admire the District Court’s optimism, it remains the case that “[t]here will be, on virtually every jury, people who would find the lifestyle and sexual preferences of a homosexual or bisexual person offensive.” State v. Ford, 926 P.2d 245, 250 (Mont. 1996); see also United States v. Delgado-Marrero, 744 F.3d 167, 205 (1st

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Cir. 2014) (“As evinced in part by the government’s persistence in hammering the largely irrelevant point of Delgado’s same-sex relationship, evidence of homosexuality has the potential to unfairly prejudice a defendant.”); Neill v.

Gibson, 263 F.3d 1184, 1201 (10th Cir. 2001) (“As the prosecutor knew, emphasizing that Neill was gay likely had a tremendous negative impact on jurors.”); United States v. Yazzie, 59 F.3d 807, 811 (9th Cir. 1995) (“[E]vidence of homosexuality can be extremely prejudicial....”); United States v. Ham, 998 F.2d 1247, 1252 (4th Cir. 1993) (“We accept without need of extensive argument that implications of... homosexuality... unfairly prejudice a defendant.” (footnote omitted)). Cf. PewResearchCenter, The Global Divide on Homosexuality 1–2 (2014) (reporting the results of a 2013 survey, and noting that 33% of respondents in the United States said that homosexuality should not be accepted by society), available at http://www.pewglobal.org/files/2014/05/Pew-Global-AttitudesHomosexuality-Report-REVISED-MAY-27-2014.pdf. We have no doubt that evidence of Mr. Bates’s sexual activity and gender non-conforming conduct had the potential to unfairly prejudice jurors against him.

It is also clear that Mr. Bates’s sexual activities became “inextricably bound up,” Ristaino, 424 U.S. at 597, 96 S. Ct. at 1021, with the issues to be resolved at trial. This fact should have been obvious to the District Court given its ruling before voir dire that it did not intend to exclude the sexually explicit images of Mr.

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Bates found on his computer. And if it wasn’t obvious to the District Court before jury selection began, it should have become obvious when Mr. Bates requested the Court to explore the potential prejudice before striking jurors. When the District Court expressed confusion about what homosexuality “has to do with this case,” the government explained that it intended to introduce “pictures and items from the defendant’s computer [to] show that he was engaged in homosexual activity[,]...

which goes to show that he wouldn’t be sharing his computer with other people.” The government made its intent to offer the graphic and intimate evidence of Mr.

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