U.S. v. O'Keefe, 05-11924.
| Decision Date | 22 August 2006 |
| Docket Number | No. 05-11924.,05-11924. |
| Citation | 461 F.3d 1338 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Michael Aaron O'KEEFE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
George P. Donaldson, III (Court-Appointed), Misty Garrett Haskins, Perry & Walters, LLP, Albany, GA, for Defendant-Appellant.
James N. Crane, Albany, GA, Damon A. King, U.S. Dept. of Justice, Crim. Div., Washington, DC, for Plaintiff-Appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before DUBINA, MARCUS and PRYOR, Circuit Judges.
Appellant Michael Aaron O'Keefe ("O'Keefe") appeals his convictions for receipt, advertisement, and possession of child pornography, in violation of 18 U.S.C. §§ 2251(c)(1)(A) and (d), and 2252(a)(2), (a)(4)(B), and (b)(1). O'Keefe argues that his convictions should be reversed because the government improperly used his post-arrest silence for impeachment purposes in violation of his Fifth Amendment right to due process under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and engaged in prosecutorial misconduct. For the reasons set forth below, we affirm.
O'Keefe, a math teacher at Lee County High School in Albany, Georgia, designed two internet web sites entitled "hctweens1" and "modelquest," which contained pornographic images of children. O'Keefe created the "modelquest" site in August 2000 and the "hctweens" site on December 18, 2002. On the "hctweens" web site, O'Keefe created a questionnaire using code words which asked the visitors their sexual preferences as to age and sexual activity. On the "hctweens" web site, O'Keefe required visitors to identify themselves and submit "hard core images" through email.2 Six days after the "hctweens" site was created, Homeland Security Agent Matt Goward ("Goward") discovered the site. Six days thereafter, the site was shut down by its server. Despite its short existence, during the twelve days that the site was in operation individuals solicited and exchanged child pornography through the site and 127 illegal child pornography images were placed on the site.
In May 2003, O'Keefe began posing as two young girls, ages twelve and thirteen, on the internet. In this capacity, O'Keefe posted messages on web site groups and sent photographs of two young girls, which he had downloaded from another web site, to male suitors in an effort to arrange meetings with the men. O'Keefe asked these individuals to send him images of young girls, ages eleven through thirteen, engaged in sexual acts with older men.
On June 4, 2003, law enforcement agents executed a search warrant on O'Keefe's residence, seizing his computer and a floppy disk containing pornographic files. Thereafter, on May 27, 2004, O'Keefe was charged in a four count superseding indictment with receipt, possession, and advertising of child pornography.3 O'Keefe pleaded not guilty to the indictment and the case proceeded to trial.
O'Keefe's primary trial defense was that he was actually an anti-child pornography crusader who developed internet web sites to entrap child predators in order to turn their identities over to law enforcement authorities.4 According to O'Keefe, his crusading efforts were thwarted when the web sites were hacked into and altered by computer viruses to include pornographic images of children.
At trial, the government first broached the subject of O'Keefe's silence when it asked Homeland Security Agent Cory Brant ("Brant"), the case agent for O'Keefe's case, about his knowledge of O'Keefe working "as an undercover vigilante to expose child pornography on the internet." (R. Vol. 9 at 95.) Without objection from O'Keefe's counsel, Brant responded that he first learned of O'Keefe's defense during O'Keefe's opening statement. (R. Vol. 9 at 95-96.) Brant also testified that he seized a computer and several compact discs, zip disks, and floppy disks from O'Keefe's house, and a computer from the high school where O'Keefe worked. (Id. at 100, 108; Vol. 12 at 166.)
James Fottrell ("Fottrell"), a manager of the High Technology Investigative Unit within the Child Exploitation and Obscenity Section of the Department of Justice, testified for the government as an expert witness in computer forensics. (R. Vol. 10 at 51-52, 69.) Fottrell testified that, during his investigation of O'Keefe's computer, he performed a virus analysis on O'Keefe's hard drive. (R. Vol. 11 at 63.) Fottrell stated that he found two viruses on O'Keefe's computer that were only capable of replacing the default homepage of the web browser with a homepage that O'Keefe did not select. (Id. at 65-66.) Fottrell further testified that the two viruses he found on O'Keefe's computer were not capable of "downloading and uploading child pornography and sending out advertisements." (Id. at 67.)
During the trial, O'Keefe testified in his own defense. On direct examination, O'Keefe testified that he began gathering evidence against child predators on the internet because of an incident involving a family member in 1990. (R. Vol. 12 at 127.) O'Keefe stated that he had participated in anti-child pornography web sites and reported information to the police anonymously, but was dissatisfied with the response. (Id. at 134, 137.) As a result, O'Keefe decided to begin a personal crusade against child predators and began associating with others who were interested in trying to rid the internet of child pornography. He later developed web sites in an attempt to attract these predators so that he and his associates could eliminate child pornography on the internet. (Id. at 131, 137, 139.) O'Keefe claimed that the other individuals with whom he worked in developing the web sites also had access to the sites. (Id. at 143-44.) O'Keefe acknowledged that he created the "hctweens" web site and survey with the intent of eliciting "hard core images" from pornographers through e-mail. (Id. at 154-56.) O'Keefe stated that he intended to transmit the information received from the "hctweens" web site to the Anti-Child Porn Organization. (Id. at 156.) O'Keefe further stated that he had previously reported anonymously to the Anti-Child Porn Organization who in turn reports to law enforcement. (Id. at 192.)
On cross-examination, O'Keefe testified that he wrote a survey containing sexually explicit questions involving children and posted the survey on one of his web sites. (Id. at 167-69.) O'Keefe also acknowledged that a web site containing child pornography stories was on his computer, as well as pornographic pictures that involved children, but he maintained that he did not recall viewing the stories or pictures. (Id. at 169-81.) O'Keefe further testified that he saved pornographic images on the floppy disks, but did not know that the images involved pictures of children. (Id. at 162-63.)
The government then raised the subject of O'Keefe's silence with O'Keefe during his cross-examination:
(Id. at 185-86.) Before O'Keefe could answer the question, his counsel objected and the following colloquy ensued:
Court: What is the objection?
Defense: [O'Keefe] does — [O'Keefe]'s going to be read his rights. He has no obligation to tell [Brant] or any other agent anything. And I object to his commentary on whether anything was or was not said.
Defense: The objection is that [O'Keefe] has no obligation to make a statement and the commentary is that he didn't make a statement.
Court: Well. Fine. That is correct. He doesn't have to make a statement, so what is the question?
. . .
Defense: It is objectionable for [the government] to ask [O'Keefe] what statements he made or didn't tell this person that. That is objectionable and I object to it.
(Id. at 185-86.) The court overruled the objection and stated that O'Keefe "does not have to say anything, but he cannot not be asked whether he did or didn't." (Id.)
The government continued its cross-examination, and O'Keefe admitted that he never told Brant on the day of the search or any time thereafter that he was a private citizen trying to expose child pornography. (Id.) O'Keefe also admitted that he never told anyone at the Department of Homeland Security, the Federal Bureau of Investigation, nor the National Center for Missing and Exploited Children about his vigilantism. (Id. at 186-88.) The court then gave the jury a limiting instruction, advising them that
[A] defendant or a suspect has no obligation to volunteer questions — I mean answers to questions, and in some situations may have a right not to make a statement. The Court is allowing this cross examination because of the — because of the facts asserted and testified to by the defendant on direct. So since that's a matter he talked about, he can be questioned about what he did or may not have done in that regard. But that's not to be confused with an obligation as if that means there's a — some legal accountability because he did or did not.
(Id. at 188.) The cross-examination then continued and O'Keefe admitted that he did not report his activities to the Georgia Bureau of Investigation nor any other law enforcement agent. (Id. at 188-89.)
On redirect examination, O'Keefe further testified that he never had the opportunity to pass any information to law enforcement with regard to child predators because one of his web sites "went crazy" and he did not want anything further to do with it. (R. Vol. 13 at 29.) The court then gave another limiting instruction to the jury concerning O'Keefe's testimony:
Ladies and gentlemen . . . the Court in an...
To continue reading
Request your trial
-
Prevatte v. French
...the exculpatory story, but rather to challenge the defendant's testimony as to his behavior following arrest."); United States v. O'Keefe, 461 F.3d 1338, 1348 (11th Cir. 2006) (stating that "[t]he fact of a post-arrest silence can be used by the prosecutor to contradict a defendant who test......
-
Lupfer v. State Of Md..
...to rebut an impression created by the defense that he or she cooperated with the police. For example, in United States v. O'Keefe, 461 F.3d 1338, 1349 (11th Cir.2006), cert. denied, 549 U.S. 1232, 127 S.Ct. 1308, 167 L.Ed.2d 120 (2007), the United States Court of Appeals for the Eleventh Ci......
-
United States v. Tobin
...1) were improper and 2) prejudiced the defendant's substantial rights in light of any curative instruction. United States v. O'Keefe, 461 F.3d 1338, 1350 (11th Cir.2006). “A defendant's substantial rights are prejudicially affected when a reasonable probability arises that, but for the pros......
-
State v. Tully
...of prosecutors who attempt to rebut this presentation by pointing to a lack of cooperation.’ [Citation omitted.]” United States v. O'Keefe, 461 F.3d 1338, 1348 (11th Cir.2006); see also Earnest v. Dorsey, 87 F.3d 1123, 1135 (10th Cir.1996) (reference to postarrest silence allowed but only t......
-
Trials
...statements connecting defendant’s weight gain with cessation of methamphetamine use improper because personal opinion); U.S. v. O’Keefe, 461 F.3d 1338, 1349-50 (11th Cir. 2006) (prosecutor’s statement that defense theory fabricated by counsel improper because personal opinion); U.S. v. McGi......