U.S. v. Caldwell

Citation586 F.3d 338
Decision Date26 October 2009
Docket NumberNo. 08-50804.,08-50804.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Arkon Christopher CALDWELL, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Joseph H. Gay, Jr., Asst. U.S. Atty., Elizabeth Berenguer (argued), San Antonio, TX, for U.S.

Mary Stillinger (argued), El Paso, TX, for Caldwell.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD, OWEN and SOUTHWICK, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant, Arkon Christopher Caldwell, appeals his convictions of one count of knowing possession, on or about November 7, 2005, of material transported in interstate commerce involving the sexual exploitation of minors, in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2), and of one count of the knowing receipt, from on or about February 4, 2005, to on or about November 7, 2005, of materials transported in interstate commerce involving the sexual exploitation of minors, in violation of 18 U.S.C. § 2252(a)(2), (b)(1). He raises three issues before this court. First, Caldwell argues that the trial court abused its discretion when it allowed the prosecution to display to the jury brief excerpts of two videos depicting child pornography, already admitted into evidence, over the defendant's Rule 403 objection. Second, he complains that the trial court allowed the prosecution to display to the jury brief excerpts of two videos depicting adult bestiality, already admitted into evidence, also over the defendant's Rule 403 objection. Third, Caldwell complains the trial court committed plain error in allowing certain unobjected to testimony of a witness for the United States. He urges this court to hold this testimony resulted from prosecutorial misconduct. For the reasons stated below, we affirm Caldwell's conviction.

STANDARD OF REVIEW

This court reviews a district court's evidentiary rulings for an abuse of discretion. United States v. Yanez Sosa, 513 F.3d 194, 199 (5th Cir.2008). A trial court abuses its discretion when it bases its decision on an erroneous view of the law or a clearly erroneous assessment of the evidence. Id. at 200. We review unobjected to opinion testimony and prosecutorial misconduct for plain error that affects substantial rights. United States v. Hitt, 473 F.3d 146, 161 (5th Cir.2006). The error must seriously affect the fairness, integrity, or public reputation of judicial proceedings. Id.

FACTS AND PROCEEDINGS BELOW

Appellant Caldwell was an Army specialist who served seven months in Iraq, where he was a military police gunner. After returning from Iraq in about March or April 2004, he was stationed at Fort Bliss Army Base in El Paso, Texas. In the period beginning about nine or ten months after his return from Iraq, the computer in his Fort Bliss home accumulated seventeen videos depicting child pornography and many more adult pornographic videos. In July of 2005, federal agents discovered that this computer shared child pornography using a peer-to-peer file sharing program known as LimeWire. Peer-to-peer programs like LimeWire allow users to share, search, and copy certain files over the Internet. An investigation of the internet protocol address revealed that the computer belonged to the defendant. By using one of these peer-to-peer programs, agents connected to Caldwell's computer and searched the files his computer shared on the network. They discovered over fifty files with titles indicative of child pornography. Agents downloaded and confirmed that these files depicted child pornography. Based on this information, the Government executed a search warrant of the defendant's home. When agents arrived at the defendant's home on November 7, 2005, and provided him with a copy of the search warrant, the defendant spontaneously stated that he knew he had pornography on his computer. The agents found no one other than the defendant at home at the time of the search.

When they entered the defendant's living room, the Government agents found the defendant's computer turned on with the LimeWire program downloading a file called, "animal sex Brazilian girl fucking dog." The Government found seventeen pornographic videos depicting minors engaging in sexually explicit conduct. Forensic analysis of the hard drive revealed that these files were created between September 20, 2005 and November 5, 2005. Along with child pornography, the agents found multiple videos depicting adult bestiality on the defendant's computer. When the defendant testified, he denied ever looking at child pornography or bestiality videos. He denied using his computer to download any pornography on the morning of the search. The jury returned a guilty verdict on both counts.

DISCUSSION
I. Displaying Child Pornography to the Jury

During the Government's case-in-chief, it offered and published to the jury three short clips taken from over an hour's worth of child pornography. It introduced one video of child pornography, which lasted three minutes and thirty-two seconds. That video was not itself published to the jury. However, the court allowed the Government to publish to the jury a short excerpt of that video over the defendant's objection. Then, the Government introduced and published to the jury excerpts from two more child pornography videos found on the defendant's computer. These excerpts lasted thirty-four (or twenty-three) seconds and thirty-one seconds, respectively. The Government's evidence showed that one of these videos had been opened and previewed approximately half an hour before the agents arrived on November 7, 2005. All three of these brief video excerpts were entered into evidence and published to the jury over the defendant's Rule 403 objection.

The defense argued that because it had stipulated that the videos contained child pornography, under Old Chief v. United States, the Government did not need to publish the videos to the jury. 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). The stipulation (which was read to the jury) states:

"The government and the defense have stipulated that the 17 videos listed in Government's Exhibit 37 were found in the shared or incomplete LimeWire folders on the hard drive of the computer belonging to Arkon Caldwell and seized by George O'Campo on November 7, 2005 from 1910-B Humphrey [Caldwell's residence], which is located on Fort Bliss, Texas, and is also located within the Western District of Texas. That these videos were transported to that computer in interstate or foreign commerce, that is, through the internet via LimeWire.

It is further stipulated that these 17 videos contain visual depictions of minors under the age of 18, engaging in sexually explicit conduct, and that the parties have no evidence to suggest that actual minors were not used in the creation of those videos, and that the videos do show the minors engaged in sexually explicit conduct."

Caldwell contends that the trial court committed reversible error because it did not conduct a 403 weighing test.

While all relevant evidence tends to prejudice the party against whom it is offered, Rule 403 excludes relevant evidence when the probative value of that evidence is substantially outweighed by the unfairly prejudicial nature of the evidence. FED.R.EVID. 403; United States v. Rocha, 916 F.2d 219, 239 (5th Cir.1990). When one party stipulates to a disputed fact, the stipulation conclusively proves that fact. Old Chief, 117 S.Ct. at 653. Any additional evidence offered to prove that fact, while still relevant, could potentially violate Rule 403. Id.

Old Chief addresses the admissibility under Rule 403 of additional relevant evidence in light of a stipulation. In Old Chief, the prosecution charged Old Chief with violating a law that prohibited possession of a firearm by anyone who has been convicted of a felony. Id. at 647. Old Chief had previously been convicted of the felony offense of assault causing serious bodily injury. Id. Before trial, Old Chief moved in limine to prevent the prosecution from discussing the underlying felony and offered a stipulation of Old Chief's convicted felon status at the time in question. Id. at 648. The Government refused the stipulation. Id. On appeal, the Court begins its analysis with the general rule: the criminal defendant cannot stipulate his way out of the full evidentiary force of the Government's case. Id. at 653. The Court concludes by reversing the conviction as an exception to the general rule because the defendant's legal status (felon) is not part of the Government's narrative or story. Id. at 655. A foundation of the Old Chief decision seems to turn on the contribution of the challenged evidence to the overall narrative of the Government's case. Id. at 653 ("Evidence thus has force beyond any linear scheme of reasoning, and as its pieces come together a narrative gains momentum, with power not only to support conclusions but to sustain the willingness of jurors to draw inferences, whatever they may be, necessary to reach an honest verdict.").

Unlike Old Chief, child pornography is graphic evidence that has force beyond simple linear schemes of reasoning. It comes together with the remaining evidence to form a narrative to gain momentum to support jurors' inferences regarding the defendant's guilt. It provides the flesh and blood for the jury to see the exploitation of children. The general, conclusory language of the stipulation that the videos "contain visual depictions of minors under the age of eighteen, engaging in sexually explicit conduct" does not have the same evidentiary value as actually seeing the particular explicit conduct of the specific minors. Jurors have expectations as to the narrative that will unfold in the courtroom. Id. at 654. If those expectations are not met, jurors may very well punish the party who disappoints by drawing a negative inference. Id. For example, jurors expect to see a gun in the case of a person charged...

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