U.S. v. Yarrington

• Decision Date: 10 March 2011
• Docket Number: No. 09–3453.,09–3453.
• Parties: UNITED STATES of America, Appellee,v.Dale YARRINGTON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

634 F.3d 440

UNITED STATES of America, Appellee,

v.Dale YARRINGTON, Appellant.

No. 09–3453.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 23, 2010.Filed: March 10, 2011.

Jay E. Denne, argued, Sioux City, IA, for appellant.Mark Tremmel, AUSA, argued, Sioux City, IA, for appellee.Before BYE, BEAM, and SMITH, Circuit Judges.SMITH, Circuit Judge.

A jury found Dale Yarrington guilty of possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The district court ¹ sentenced Yarrington to the statutory maximum of 120 months' imprisonment. On appeal, Yarrington makes the following arguments: (1) the district court abused its discretion by excluding the testimony of Lonnel Porter, which he intended to use to impeach a government witness; (2) the district court erred in overruling his motion for judgment of acquittal based on insufficient evidence to support his conviction for possession of child pornography; and (3) the district court erred in applying two sentencing enhancements and in calculating his criminal history category. For the following reasons, we affirm.

I. Background

On May 24, 2007, Yarrington and his mother took Yarrington's computer to Computer Reboot in Waterloo, Iowa, for repair because the computer's operating system would not “boot.” William Widmann, a computer technician at Computer Reboot, attempted to repair the computer and determined that he would have to erase all the data and format the hard drive. Before doing so, Widmann spoke with Yarrington and his mother, who both asked Widmann to save any pictures on the hard drive before erasing and formatting it. To access and save the pictures, Widmann connected Yarrington's hard drive to one of Computer Reboot's computers and searched for image files on Yarrington's hard drive. After completing the search, Widmann discovered images that he believed to be child pornography.

Widmann reported his discovery to his employer, John Hayes, the owner of Computer Reboot, who then viewed two “sexually explicit” images of “very young female[s]” that Widmann found on Yarrington's hard drive. After contacting the police, but before the police arrived, Widmann made a copy of the folder containing the images that he found and placed it on the C: drive of Yarrington's hard drive. He testified that he did so in order to make the images more accessible for police, since the operating system would not boot. He testified that he returned Yarrington's hard drive to Yarrington's computer and made no other changes to Yarrington's hard drive. When the police arrived, he informed them that he had copied the folder.

When Officer David McFarland of the Waterloo Police Department arrived at Computer Reboot, Widmann showed Officer McFarland some of the photographs that he found on Yarrington's hard drive. Officer McFarland testified that the images showed children “under the age of ten” wearing no clothing and in “sexual poses.” Officer McFarland seized Yarrington's computer and Computer Reboot's service agreement for that computer. He later called the phone number listed on the service agreement and spoke with a person who identified himself as Yarrington. Officer McFarland told Yarrington that “some illegal stuff” had been found on the computer, but Yarrington denied any knowledge of the material. When Officer McFarland told Yarrington that he had seized his computer, Yarrington yelled, “Those [expletive]. I can't believe it.”

The police subsequently obtained a search warrant to search the contents of Yarrington's computer for child pornography. Pursuant to the warrant, Lieutenant Kent Smock of the Black Hawk County Sheriff's Department performed a forensic analysis of the data on the hard drive from the computer. He testified that he analyzed “original images” contained on Yarrington's hard drive—not the copies that Widmann had created. Including only those original images, Lieutenant Smock testified that Yarrington's hard drive contained 1,336 “child notable” images, which portrayed individuals Lieutenant Smock believed to be “under the age of 18 that are either exposing genitalia, engaged in a sex act, or has a sex act being committed around them while they're present.” Many of these images were temporary internet files. Approximately 168 images, however, were located in five different subfolders contained in the “My Documents” folder under the hard drive's “Owner” profile. ² Lieutenant Smock testified that images could not be saved in these subfolders without an “overt act” by the computer's user—that is, the image could not be saved to that location unless the user took steps to manually save it there. At trial, the government introduced 15 printed images from these subfolders. Each exhibit listed the image's location on the hard drive, along with the dates and times that the images were created, modified, and accessed. In the same subfolders that contained the child notable images, Lieutenant Smock found non-pornographic images of Yarrington, Yarrington's family, and Yarrington's personal property. Moreover, Lieutenant Smock testified that the “Favorites” folder on the hard drive contained links to websites that Lieutenant Smock, based on his training and experience, believed to be related to child pornography.

While awaiting trial, Yarrington divulged inculpatory evidence to a fellow detainee, Jordan McConnell, in the Bremer County Jail in Waverly, Iowa. McConnell pleaded guilty to narcotics and weapons charges pursuant to a plea agreement, in which he agreed to provide assistance to the government in other trials. In exchange, the government agreed to seek a lower sentence for McConnell. McConnell testified at Yarrington's trial that he frequently talked to Yarrington and that they had spoken about their respective charges. McConnell testified that Yarrington told him that he had child pornography on his computer and that he had been viewing child pornography “at the time his computer froze.” McConnell also testified that Yarrington told jokes about children and stated that he preferred younger children. He also testified that Yarrington told him that Yarrington planned to testify, in his own defense, that “the images were already on his computer before he got it.” On cross-examination, McConnell testified that he did not tell his cell mate, Lonnel Porter, that he planned to testify for the government in Yarrington's trial. He also admitted that he had entered into a cooperation agreement with the government for his narcotics and weapons charges. Finally, he stated his distaste for Yarrington's child pornography charge.

In his defense, Yarrington called Porter and David Baron, another inmate at the Bremer County Jail. Porter and Baron both testified that McConnell had a reputation among inmates as a “snitch” and stated that they had never seen McConnell interact with Yarrington. During Porter's direct examination, Yarrington's counsel attempted to ask Porter about any discussions he had with McConnell about Yarrington's case. When the government objected to the testimony as hearsay, Yarrington's counsel conceded that Porter's testimony would be hearsay but stated, “I think this is fair in terms of impeachment.” He explained that Porter would testify that McConnell had told Porter “that [McConnell] wanted to get on [Yarrington's] case, that he was going to basically make up information about him because he didn't like the nature of the charge.” The district court concluded that the testimony was hearsay and not admissible under any exception, and it excluded the testimony.

Yarrington testified in his own defense. He acknowledged that he took his computer to Computer Reboot for repairs in May 2007. Yarrington testified that he had never seen the 15 child pornography images introduced at trial. He admitted, however, that he had saved the non-pornographic images contained in the “My Pictures” folder on his hard drive. Yarrington testified that several other individuals lived with him and had access to his computer when he was not home. He testified that another person had been using the computer when it “crashed” and that he was not present at that time. He stated that he took the computer to Computer Reboot because he was unable to get the computer to operate after this crash. Yarrington testified that he had spoken with McConnell in jail on a few occasions, but he denied ever speaking to him about his case.

At the close of all the evidence, Yarrington moved for a judgment of acquittal, which the district court denied. The jury found Yarrington guilty of possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). After the jury returned its verdict, Yarrington did not renew his motion for a judgment of acquittal. Yarrington never filed a motion for a new trial.

Prior to sentencing, the presentence investigation report (PSR) calculated a base offense level of 18. The PSR recommended five enhancements: (1) a two-level enhancement, pursuant to U.S.S.G. § 2G2.2(b)(2), for material involving a prepubescent minor or a minor who had not attained the age of 12; (2) a four-level enhancement, pursuant to § 2G2.2(b)(4), for material that portrays sadistic or masochistic conduct or other depictions of violence; (3) a two-level enhancement, pursuant to § 2G2.2(b)(5), for an offense involving the use of a computer; (4) a three-level enhancement, pursuant to § 2G2.2(b)(7)(B), for possessing at least 150 but fewer than 300 images of child pornography; and (5) a two-level enhancement, pursuant to § 3C1.1, for obstruction of justice. The PSR also determined that Yarrington's criminal history category was V. Yarrington objected to the enhancements recommended pursuant to § 2G2.2(b)(2) and § 2G2.2(b)(4), arguing that the application of both enhancements constituted impermissible double counting. He also objected to the application of the obstruction of justice enhancement. Finally, Yarrington...