U.S. v. Pires

Decision Date06 April 2011
Docket NumberNo. 10–1062.,10–1062.
PartiesUNITED STATES of America, Appellee,v.Johnny PIRES, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit
OPINION TEXT STARTS HERE

Judith H. Mizner, Assistant Federal Public Defender, for appellant.Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.Before BOUDIN, Circuit Judge, SOUTER,* Associate Justice, and SELYA, Circuit Judge.SELYA, Circuit Judge.

In this appeal, which follows a conviction for attempted receipt and possession of child pornography, defendant-appellant Johnny Pires claims (i) insufficiency of evidence; (ii) error in the exclusion of proffered expert testimony; (iii) prosecutorial misconduct; and (iv) multiplicity of charges.

After careful consideration, we find none of these claims persuasive and, accordingly, affirm the judgment of the district court.

I. BACKGROUND

On March 19, 2008, a federal grand jury sitting in the District of Massachusetts returned an indictment that charged the appellant with two counts of attempted receipt of child pornography, 18 U.S.C. § 2252(a)(2), (b)(1), and one count of knowing possession of child pornography, id. § 2252(a)(4)(B). We rehearse the relevant facts through the prism of the ensuing trial. The government's case relied in large part on testimony from agents of the Federal Bureau of Investigation (FBI). Byron Mitchell, a member of the FBI's cyber crime unit, related that, on December 19, 2006, he mounted an online undercover investigation. To that end, he availed himself of LimeWire, a commercially available peer-to-peer networking program that allows file-sharing between unrelated computers. He entered a search term (“Lolita”) that he knew to be favored by individuals who fancied child pornography. His query returned a number of files available for download, each associated with a particular Internet protocol (IP) address.

Because some of the file names were suggestive of child pornography, Mitchell activated LimeWire's “browse the host” function, which allowed him to view all of the files available for download from a particular user's “shared files” folder. Several of the revealed files contained words that Mitchell, an experienced agent, knew to be associated with child pornography. He downloaded a number of those files from that user's folder and confirmed that some appeared to contain child pornography. He then traced the associated IP address directly to the appellant.

At that point, another FBI agent, Sarah De Lair, took charge. After performing some preliminary investigation of her own, she obtained a search warrant for the appellant's home. On April 10, 2007, De Lair, accompanied by other law enforcement personnel, executed the warrant.

De Lair testified that when she knocked on the door, identified herself, and announced that she had a search warrant, the appellant permitted entry. Following a protective sweep, De Lair and another FBI agent, Bryan Zinn, conversed with the appellant. De Lair explained that the agents would be searching the premises for evidence of child pornography and advised the appellant of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The appellant replied that he understood his rights and signed a written waiver to that effect.

De Lair proceeded to question the appellant. The interview was not recorded, nor was the appellant ever asked to sign a written statement. The agents' version of the interview follows.

The appellant told De Lair that he, his sister, and his fiancée all used the computers that were on the premises and that these computers held a goodly amount of child pornography (at least 15 files). He initially stated that he did not intentionally download any child pornography. He acknowledged, however, that he had opened suspiciously titled files obtained through LimeWire because he was curious about whether the file names reflected the actual contents of the files.

He claimed that he had used the LimeWire program to search for images of the World Trade Center. After downloading some such images, he clicked on a link entitled “Vicki willing” and watched a video of a young girl, eight to nine years of age, who was naked and engaged in a sexual act with an adult. The girl, he observed, was “not doing anything good.” The appellant estimated that he saw approximately five videos related to “Vicki willing.”

In the course of the interview, the appellant admitted to using search terms such as “Lolita” and “young preteen.” He also admitted that those searches yielded files that depicted prepubescent children, approximately seven or eight years old, “not doing anything good.” He acknowledged that he knew children were involved in child pornography and that he could tell if someone was less than 17 years of age. When De Lair showed him the titles of the two files containing child pornography that Agent Mitchell had downloaded and descriptions of their contents, the appellant stated that he recognized the titles but not the descriptions. Queried about whether he was “attracted” to child pornography, the appellant said that he was uncomfortable with the term “attracted” but admitted that he had been “interested” in child pornography (specifically, images depicting seven-to-ten-year-old children) for at least a year. Elaborating on this point, he noted that he looked at pornographic images of children three or four times per week and that he downloaded five to six such images once or twice per week.

As fruits of the search, the agents seized two computers. A forensic examination of one computer's hard drive revealed, among other files containing child pornography in the appellant's LimeWire shared files folder, the two videos that Agent Mitchell had downloaded. These two video files, each of which forms the basis for a separate count in the indictment, bore a creation date of October 21, 2006.

Nearly a year after the search, Agent De Lair tried to interview the appellant's sister at the sister's residence. By happenstance, she encountered the appellant, who told her that if he had known either that it was wrong or that anyone was watching, he would not have downloaded the files. Later, he left a voice message for De Lair, in which he indicated that he had made a mistake by having the materials on his computer. The government introduced a recording of this voice message at trial.

The appellant testified in his own defense. His account of these interactions diverged from the agents' accounts in some respects. We summarize portions of his version of what he told the agents.

The appellant maintained that he had used LimeWire to search for adult pornography and sometimes would (inadvertently) come across child pornography. If he opened a video that turned out to be child pornography, he would click out of it. While he admitted using search terms like “Lolita,” he did not understand them to be associated with child pornography. He viewed the video entitled “Vicki willing” and clicked out of it. He did not, however, delete it. He never searched for child pornography or intentionally downloaded any child pornography.

The appellant did admit to having told the agents that there was child pornography on his computer, but explained that there were also other items on the computer that he did not want and had not sought. He denied having said that he was interested in child pornography. He had used LimeWire for only about a year, three or four times a week, and would download five or six “search terms” per week,1 but without any intention of searching for, or downloading, child pornography. He denied having told Agent De Lair that he would not have downloaded the images in question had he known either that it was wrong or that someone was watching. Finally, he tried to explain away the “mistake” voicemail; he had meant to say “I made a mistake by having the child pornography on the computer, but not intentionally.”

Faced with this chiaroscuro record, the jury found the appellant guilty of one count of attempted receipt of child pornography (count two) and one count of possession of child pornography (count three), and acquitted him on the other attempted receipt count (count one). Prior to the submission of the case to the jury, the appellant had moved for a judgment of acquittal as to count two. See Fed.R.Crim.P. 29(a). He renewed that motion post-verdict, see Fed.R.Crim.P. 29(c), and he simultaneously moved for a new trial, see Fed.R.Crim.P. 33(a). The district court denied both motions, and on January 6, 2010, sentenced the appellant to a five-year incarcerative term. This timely appeal followed.

II. ANALYSIS

The appellant has briefed four claims of error. For ease in exposition, we divide our analysis into segments that correspond to these claims. We start with the one claim that seeks acquittal and then assay the three claims that seek the granting of a new trial.

A. Sufficiency of the Evidence.

The appellant contends that, as to count two, the evidence was insufficient to prove the offense's knowledge and interstate commerce elements. We address these contentions sequentially. First, however, we rehearse the standard of review.

We assess preserved challenges to evidentiary sufficiency de novo, considering the evidence in the light most agreeable to the verdict. United States v. Rodríguez–Vélez, 597 F.3d 32, 38 (1st Cir.2010). Our appraisal is aimed at determining whether on this view of the record a reasonable juror could conclude that the government proved each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Troy, 618 F.3d 27, 31 (1st Cir.2010).

1. Knowledge. The appellant contends that the government failed to introduce evidence sufficient to establish that he knew, when he received the...

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