United States v. Stewart, 12–1427.

• Decision Date: 19 September 2013
• Docket Number: No. 12–1427.,12–1427.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Theodore Cooper STEWART, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

729 F.3d 517

UNITED STATES of America, Plaintiff–Appellee,

v.Theodore Cooper STEWART, Defendant–Appellant.

No. 12–1427.

United States Court of Appeals,Sixth Circuit.

Argued: June 19, 2013.

Decided and Filed: Sept. 3, 2013.

Rehearing Denied Sept. 19, 2013.

ARGUED:Richard D. Korn, Detroit, Michigan, for Appellant. Kathleen Moro Nesi, United States Attorney's Office, Detroit, Michigan, for Appellee. ON BRIEF:Richard D. Korn, Detroit, Michigan, for Appellant. Kathleen Moro Nesi, United States Attorney's Office, Detroit, Michigan, for Appellee.

Before: GILMAN, GRIFFIN, and WHITE, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

Defendant Theodore Stewart appeals his convictions by a jury of two counts of transporting child pornography in violation of 18 U.S.C. § 2252A(a)(1). Stewart argues that he should not have been indicted in this case because the district court erred in dismissing a previously filed indictment without prejudice, rather than with prejudice, upon finding a Speedy Trial Act violation in that earlier case; the district court erred in denying his motion to suppress and motion for judgment of acquittal; and the district court committed plain error by admitting two of the government's exhibits and by not, sua sponte, instructing the jury on the statutory definition of an “identifiable minor.” We disagree and affirm.

I.

On May 12, 2009, defendant Stewart arrived at the Detroit Metropolitan Airport on a plane from Japan. In his possession were two laptop computers, a Sony and a Twinhead. Customs and Border Protection (“CBP”) Officer Marvin Steigerwald randomly approached Stewart in the international baggage claim area and began asking him questions about his passport and declaration sheet. Steigerwald characterized Stewart's responses as “standoffish” and “confrontational.” Based on these “potentially suspicious” responses, Steigerwald directed Stewart to a secondary inspection area where he could ask him additional questions and search his luggage and computers before clearing customs.

Steigerwald attempted to search the Twinhead computer, but could not because he did not have the means to power-up the laptop, which had a dead battery and required a foreign power cord converter. While searching the Sony computer, Steigerwald found about a dozen thumbnail images of nude children, approximately ten years of age, that he believed to be child pornography. Steigerwald stopped the search and called Immigration and Customs Enforcement (“ICE”) Agent Andre Young to assist. Young agreed with Steigerwald's assessment and told Stewart that they were detaining his laptops for further examination, but he was free to leave. Stewart then boarded a flight to Maryland, but his computers remained with Young. Later that day, at around 4 or 5 p.m., Young transported Stewart's two computers to ICE's main office in downtown Detroit—about twenty miles away from the airport—so that they could be further examined.

ICE Agent Joshua Edwards, a certified forensic analyst, searched the Twinhead laptop the next day. Edwards did not perform a forensic examination of the computer; instead, he only previewed its contents by scrolling through about twenty-five images per page, searching for contraband. His search revealed images that he believed to be child pornography. Edwards stopped the search and informed Young of his findings. Five days later, Young obtained a search warrant for both the Sony and the Twinhead computers.

After Young secured the search warrant, Edwards began a forensic examination of Stewart's computers. Edwards found a variety of images on both machines and divided them into three categories: (1) personal; (2) “child erotica,” which he defined as “children posed in—possibly sexually positioned and some of the children are naked and pictures that may not quite necessarily be child pornography, but are still inappropriate pictures of children”; and (3) suspected child pornography, which he defined as an image focused on the genital area of a naked child.

On September 8, 2009, in Case No. 09–20415, a grand jury charged Stewart with one count of transportation of child pornography in violation of 18 U.S.C. § 2252A(a)(1). On February 5, 2010, Stewart filed a motion to suppress all evidence obtained from his computers at ICE's Detroit office, arguing that he was subjected to an “extended border search,” without reasonable suspicion, in violation of the Fourth Amendment. On March 18, 2010, the court held a hearing on the matter and took the motion under advisement. On May 24, 2010, the district court denied the motion, holding that although Stewart's computers were subjected to an “extended border search” while at ICE's Detroit office, the government had reasonable suspicion for the search based on the images Steigerwald and Young found during their search of the Sony computer at the airport.

On the same day that the district court denied his motion to suppress, Stewart filed a motion to dismiss the indictment for violation of the Speedy Trial Act, 18 U.S.C. § 3161. He argued that his June 15, 2010, trial date, set in the court's order denying his motion to suppress, meant that he would not be brought to trial within seventy non-excludable days from the date of his indictment, the latest date under that period being May 24, 2010. The district court agreed, noting that its CM/ECF Speedy Trial Act calendaring program mistakenly calculated a trial date outside the statutorily required period because it kept Stewart's motion to suppress under advisement—and therefore excluded from the speedy-trial clock—for sixty-seven days, when it should have excluded only thirty of those days under 18 U.S.C. § 3161(h)(1)(H). The court then determined that Stewart's speedy trial motion, filed on the last non-excludable day of the seventy days allowed for bringing an indicted defendant to trial, did not toll the speedy-trial clock because under United States v. Tinklenberg, 579 F.3d 589, 598 (6th Cir.2009), aff'd on other grounds by ––– U.S. ––––, 131 S.Ct. 2007, 179 L.Ed.2d 1080 (2011), it did not actually cause or threaten any delay in the trial scheduled to begin two weeks later. As a result of the Speedy Trial Act violation, the court dismissed the indictment without prejudice on June 14, 2010.

One month later, in Case No. 10–20436, a grand jury returned a new indictment (and later a superceding indictment), charging Stewart with two counts of transportation of child pornography in violation of 18 U.S.C. § 2252A(a)(1). The five images charged in count one were found on the Sony computer and the eight images charged in count two were found on the Twinhead computer.

The evidence at trial showed that the images charged in count one were downloaded from the internet and included one image that “appeared to be a female child's vagina under the age of 18 with a male genitalia in close proximity to the child's vagina” and another that “appeared to be a closeup of the genitalia of a female child.” Many of the images charged in count two were cropped from images of naked children playing at a beach, so that the cropped image focused solely on the female genitalia of the naked, or nearly naked, child in the original image. In other instances, the original images had been brightened with photo-editing software to such an extent that it distorted the background and made the genitalia of the naked children more visible. The parties agreed that the original images from which the cropped and brightened images were created did not meet the federal definition of child pornography. The original images, taken from afar, were of little girls bathing on a beach in the nude.

During the trial—without objection from Stewart—the district court admitted the government's Exhibits 15 and 16 into evidence, which were image compilations created from those found on Stewart's computers. Edwards testified that Exhibit 15 contained 216 images of what he characterized as child erotica, and Exhibit 16 contained 182 images of naked children that he characterized as child pornography.

After the government rested, Stewart made an oral motion for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure, arguing, among other things, that the First Amendment protected the charged images and that the cropped images charged in count two should not be considered child pornography because those images were not, as a matter of law, “lascivious” exhibitions of a child's genitals under 18 U.S.C. § 2256(2)(A)(v). The district court denied the motion from the bench and submitted the case to the jury. The jury found Stewart guilty with regard to the two images described above charged in count one and all of the images charged in count two.

Stewart renewed his Rule 29 motion and filed a motion for a new trial in which he argued, in pertinent part, that the district court plainly erred by admitting Exhibits 15 and 16 and by not, sua sponte, instructing the jury on the statutory definition of an “identifiable minor” as used in 18 U.S.C. § 2256(8)(C). The district court denied both motions and sentenced Stewart to concurrent terms of sixty months, the mandatory minimum. Stewart timely appealed.

II.

First, Stewart argues that he was unlawfully indicted in Case No. 10–20436 because the district court, upon finding a Speedy Trial Act violation in Case No. 09–20415, erred in dismissing the first indictment without prejudice, rather than with prejudice, because the delay in bringing him to trial purportedly caused an “undue hardship” on his personal life. ¹ The government responds that under United States v. Tinklenberg, ––– U.S. ––––, 131 S.Ct. 2007, 179 L.Ed.2d 1080 (2011), there was no Speedy Trial Act violation and, thus, no basis for a dismissal with prejudice, because Stewart's May 24, 2010, pretrial motion to dismiss automatically tolled the running of the speedy-trial clock, regardless of whether it “actually” delayed the trial. Because “ ‘an ...