625 F.3d 583 (9th Cir. 2010), 08-10525, United States v. Wright

Docket Nº:08-10525.
Citation:625 F.3d 583
Opinion Judge:M. SMITH, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jason A. WRIGHT, Defendant-Appellant.
Attorney:Jon Sands, Federal Public Defender, Heather E. Williams and Brian I. Rademacher (on the brief and argued), Assistant Federal Public Defenders, District of Arizona, for the defendant-appellant Jason A. Wright. Dennis K. Burke, United States Attorney, Christina M. Cabanillas, Appellate Chief, Bruce...
Judge Panel:Before: PROCTER HUG, JR., and MILAN D. SMITH, JR., Circuit Judges, and THOMAS F. HOGAN, Senior District Judge.[*] Opinion by Judge MILAN D. SMITH, JR.; Concurrence by Judge HUG. HUG, Circuit Judge, concurring in part:
Case Date:November 04, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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625 F.3d 583 (9th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jason A. WRIGHT, Defendant-Appellant.

No. 08-10525.

United States Court of Appeals, Ninth Circuit.

November 4, 2010

Argued and Submitted July 12, 2010.

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Jon Sands, Federal Public Defender, Heather E. Williams and Brian I. Rademacher (on the brief and argued), Assistant Federal Public Defenders, District of Arizona, for the defendant-appellant Jason A. Wright.

Dennis K. Burke, United States Attorney, Christina M. Cabanillas, Appellate Chief, Bruce M. Ferg (on the brief and argued), Assistant U.S. Attorney, District of Arizona, for plaintiff-appellee United States of America.

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Appeal from the United States District Court for the District of Arizona, Raner C. Collins, District Judge, Presiding. D.C. No. 4:03-cr-01908-RCC-CRP.

Before: PROCTER HUG, JR., and MILAN D. SMITH, JR., Circuit Judges, and THOMAS F. HOGAN, Senior District Judge.[*]

Opinion by Judge MILAN D. SMITH, JR.; Concurrence by Judge HUG.

OPINION

M. SMITH, Circuit Judge:

Defendant-Appellant Jason Wright appeals his conviction and sentence for the transportation and possession of child pornography in violation of 18 U.S. C. § 2252A(a)(1), (a)(5)(B). Wright raises numerous issues of alleged error. First, he challenges his conviction based on insufficiency of the evidence. With respect to his conviction under 18 U.S. C. § 2252A(a)(1), Wright argues that the charged offense requires interstate transmission of child pornography files, yet there is evidence that none of the files crossed state lines. With respect to both counts of which Wright was convicted, he argues that there is no evidence proving he knew that the twenty-seven files charged in the indictment were either on his computer or contained child pornography. Second, Wright challenges the district court's denial of his motion to suppress statements. Third, Wright maintains that he was denied a fair trial based on: (1) the district court's exclusion of evidence under Federal Rule of Evidence 404(b); (2) prosecutorial misconduct throughout the course of the trial; (3) Wright's limited access to a mirrored copy of the computer's hard drive; and (4) an erroneous jury instruction that failed to require the jury to find Wright knew the files charged in the indictment existed on his computer and contained child pornography. Wright also argues that even if the court would not reverse on the basis of any of these errors individually, their cumulative effect denied him a fair trial. Finally, Wright argues that his 121-month sentence was improper.

We have jurisdiction under 28 U.S. C. § 1291. We affirm in part, reverse in part, and remand to the district court for proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

On January 16, 2003, from the FBI office in Tucson, Arizona, FBI Special Agent Robin Andrews conducted an undercover search on a file-sharing program known as an mIRC 1 (Internet Relay Chat). Andrews came across the user name " azgymguy2" in the chat rooms " 100% teensexpics" and " gayteenpics." After typing in a " trigger" that allowed her to establish a direct connection with azgymguy2's file-trader, the following announcement appeared:

Welcome to my server. I'm fairly open to uploads, so please just upload stuff you feel is good. However, I am always looking for huge cocks, young boys and movies. I hope you enjoy your stay.

Andrews downloaded thirteen files-three of which were child pornography. 2

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Andrews conducted a second session that afternoon, repeating the steps she took in the morning. This time she downloaded fifty-nine files, twenty-one of which were child pornography. Andrews conducted three more undercover sessions on January 27, January 29, and February 4, 2003.

According to the government's expert witness at trial, Sven Nielsen, Wright's direct client-to-client connection to Andrews-that is, the connection Wright used to transport the images to Andrews-did not go through IRC servers such " that the actual traffic of sending the file or sending the chat from that point on d[id] not actually cross state lines." Nielsen also explained that, in order to establish a direct client-to-client connection, the initial request takes " the normal IRC route," but once the request is accepted the computers are connected directly, not through the server. Of course, while the direct client-to-client communication does not actually cross state lines, the files are still transmitted over the Internet. See Appellee's Supp. Excerpts of Record (SER) at 165 (" if Joe clicks ‘ yes' and starts accepting the file, then my computer will send that file directly over the Internet, not going through the IRC servers" ); see also United States v. Lewis, 554 F.3d 208, 211 (1st Cir.2009) (explaining that while " peer-to-peer" networks, or " direct connection[s]" do not travel through " central servers," the transfers are still subject to Internet communication " associated with the underlying TCP/IP protocol" (internal quotation marks omitted)). Furthermore, Andrews testified that when she logged on to the IRC network on January 16 and eventually connected to Wright's file-server, from which Wright transported the child pornography files, she connected through a server in San Jose, California. See SER at 63; see also id. at 77 (same with respect to afternoon session on January 16); id. at 142 (January 27 session took place via a server in Fairfax, Virginia); id. at 167 (" [T]ypically the way people connect to an IRC server is they just say connect me to the undernet and just pick a server for me." ).

After matching Wright's home address with " azgymguy2's" Internet connection, the FBI executed a search warrant at Wright's residence on February 13, 2003. Agents seized Wright's desktop computer and a laptop from the bedroom of Wright's roommate, Shawn Dittfurth. While other agents searched Wright's apartment, Andrews and Detective Jeff Englander of the Pima County Sheriff's Office questioned Wright outside the apartment in an unmarked police vehicle.

Approximately one week after the search, Dittfurth disappeared. According to Wright, Dittfurth unexpectedly moved out of Wright's apartment. Wright's defense throughout the trial was that it was Dittfurth, and not Wright, who was responsible for possession of the child pornography found on Wright's desktop computer. Wright sought to introduce evidence at trial supporting this theory; however, as we discuss more fully below, Wright claims that the district court excluded any such evidence on the basis that Dittfurth did not testify at trial.

In the Superseding Indictment, the government charged Wright with ten counts relating to the advertisement, transportation, and possession of child pornography. Count 1 alleged that Wright knowingly published a notice and advertisement seeking or offering child pornography in violation

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of 18 U.S. C. § 2251(c)(1)(A).3 The jury acquitted Wright of Count 1. The government also alleged, in Counts 4 through 10, that Wright knowingly possessed images of child pornography on separate CDs, in violation of 18 U.S. C. § 2252(a)(5)(B). Wright was also acquitted of the possession charges with respect to those images.

Counts 2 and 3 are the focus of this appeal. Based on Andrews's undercover sessions connecting to Wright's computer, the government charged Wright with transporting nine files in Count 2. The jury convicted Wright of " knowingly transport[ing] and ship[ping] in interstate commerce, by means of a computer, child pornography." Based on images recovered from Wright's computer, the government charged Wright with possession of nineteen files in Count 3. Wright was convicted of " knowingly possess[ing] computer disks ... that contained images and films of child pornography that had been shipped and transported in interstate or foreign commerce by means of a computer." The district court sentenced Wright to 121 months on the transportation count and 60 months on the possession count, to be served concurrently.

DISCUSSION

Wright raises a host of issues on appeal. First, he argues that 18 U.S. C. § 2252A(a)(1), as it existed at the time of his offense, requires interstate transmission of child pornography images. Second, Wright argues that there is no evidence proving he knew that the twenty-seven files charged in the indictment were either on his computer or contained child pornography. Third, Wright challenges the district court's denial of his motion to suppress statements. Fourth, Wright claims he was denied a fair trial. Finally, he claims that his sentence was improper.

I. 18 U.S. C. § 2252A(a)(1)'s " In Interstate Commerce" Requirement

As it existed at the time of Wright's offense in 2003, 18 U.S. C. § 2252A(a)(1) punished any person who " knowingly mail[ed], or transport[ed] or ship[ped] in interstate or foreign commerce by any means, including by computer, any child pornography." Whether section 2252A(a)(1)'s " in interstate ... commerce" language requires the government to prove that the images themselves traveled across state lines appears to be a question of first impression in this circuit. Wright's principal argument is that the statute does so require. However, both parties agree that the images in question never traveled outside Arizona when Andrews downloaded them from Wright's computer. The government counters that the statute does not require the images to cross state lines. Alternatively, it argues that while the images themselves may not have traveled across state lines, their transmission would not have occurred except for the prior communications from the defendant's file server through the IRC network to the FBI. As a result, because those communications traveled...

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