United States v. Cantizano
| Decision Date | 08 May 2023 |
| Docket Number | 19-10373 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CARLOS CANTIZANO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
NOT FOR PUBLICATION
Submitted April 19, 2023 [**]
Appeal from the United States District Court D.C. No 4:14-cr-02097-JAS-JR-1 for the District of Arizona James Alan Soto, District Judge, Presiding
Before: TALLMAN, OWENS, and BADE, Circuit Judges.
Carlos Cantizano appeals from his jury conviction and sentence for one count of distribution of child pornography (Count 1) and one count of possession of child pornography (Count 2). We have jurisdiction pursuant to 28 U.S.C. § 1291. As the parties are familiar with the facts, we do not recount them here.
We affirm.
1. Rule 404(b) Violation. Cantizano argues that the district court erred by admitting Exhibit 83-a list of child pornography files found on Cantizano's seized laptop-because the government did not provide notice as required by Federal Rule of Evidence 404(b). We review de novo whether evidence is "other act" evidence under Rule 404(b). United States v. Carpenter, 923 F.3d 1172, 1180-81 (9th Cir. 2019). "Evidence of any other crime, wrong, or act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Fed.R.Evid. 404(b). However, we have "exempted other act evidence from the requirements of Rule 404 where it is 'inextricably intertwined' with the underlying offense." Carpenter, 923 F.3d at 1181 (citation omitted).
Here Exhibit 83 was inextricably intertwined with Cantizano's Count 2 possession charge and therefore exempt from Rule 404(b). Although the indictment listed only six child pornography files, the remaining files listed on Exhibit 83 became "other acts simply because [Cantizano was] indicted for less than all of his actions." United States v. Anderson, 741 F.3d 938, 949 (9th Cir. 2013) (citation omitted). Accordingly, the district court properly admitted Exhibit 83.
2. Prosecutorial Misstatements. For the first time on appeal, Cantizano argues that the prosecution misstated evidence in its closing arguments. We review whether any prosecutorial misconduct occurred de novo and, if the defendant failed to object, the effect of any misconduct for plain error. United States v. Flores, 802 F.3d 1028, 1034 (9th Cir. 2015).
"A prosecuting attorney may not misstate or manipulate the evidence at trial." United States v. Preston, 873 F.3d 829, 844 (9th Cir. 2017). At the same time, prosecutors "are free in argument to suggest that the jury draw reasonable inferences from the evidence presented at trial." Flores, 802 F.3d at 1035. Because Cantizano did not raise these objections at trial, he bears the burden of showing "(1) there was error; (2) it was plain; (3) it affected [his] substantial rights; and (4) viewed in the context of the entire trial, the impropriety seriously affected the fairness, integrity, or public reputation of judicial proceedings." United States v. Garcia-Morales, 942 F.3d 474, 475 (9th Cir. 2019) (internal quotation marks and citation omitted).
First, Cantizano argues that the prosecutor misrepresented Exhibit 83 by stating that the document showed "the dates in which those files were created on this computer." But even if the prosecution technically mischaracterized the agent's testimony on how to interpret a "created" date for a computer file, Cantizano provides no specific arguments that this error "affected [his] substantial rights" and that "the impropriety seriously affected the fairness, integrity, or public reputation of judicial proceedings." Id. Thus, any mischaracterization did not amount to plain error.
Second, Cantizano argues that the prosecutor mischaracterized the evidence by stating that "hundreds of . . . videos dating all the way back to 2011" were "downloaded and accessed for over a 15-month period" and that Cantizano accessed child pornography files on certain dates. These were not misstatements. For example, Exhibit 83 listed about 230 files, the first of which was "created" on May 3, 2011. Thus, the jury could reasonably infer that there were "hundreds of . . . videos dating all the way back to 2011." The record also shows that the files were last written, or last modified, between May 2011 and August 2012. As the government argues, it was therefore "reasonable to infer that if a file was modified, it was accessed" during that period. Although Cantizano argues that the prosecution erroneously claimed that the dates came from Exhibit 50, or the "jump list," any error is not plainly evident given the ambiguity of the prosecutor's statement.
3. Discovery Violation. Cantizano argues that the prosecution violated its discovery obligations with its last-minute disclosure of Exhibit 50. We determine whether the government violated its discovery obligations de novo. United States v. Obagi, 965 F.3d 993, 997 (9th Cir. 2020). "To reverse a conviction for a discovery violation, we must find not only that the district court abused its discretion, but that the error resulted in prejudice to substantial rights." United States v. Amlani, 111 F.3d 705, 712 (9th Cir. 1997) (citation omitted).
Assuming, without deciding, that the government violated its discovery obligations, Cantizano cannot show that the late disclosure of Exhibit 50 prejudiced a substantial right. Exhibit 50's significance was limited because the government only used it to refresh a witness's recollection. More importantly, the government disclosed the data on the laptop from which Exhibit 50 was created. The disclosure included information that one of the files had been accessed on August 1, 2012-a fact that Cantizano argues "completely exonerate[s]" him because he was "not in Arizona and had no access to the laptop" on that date. Because Cantizano had access to this purportedly significant piece of evidence well before trial, there was no discovery violation that prejudiced his substantial rights.
4. Hearsay and Confrontation Clause Violation. Cantizano also argues that admission of an agent's testimony regarding his conversation with a non-testifying witness violated Rule 801(c)'s prohibition against hearsay statements and the Confrontation Clause. We review the admission of evidence under a hearsay exception for abuse of discretion and alleged violations of the Confrontation Clause raised for the first time on appeal, as here, for plain error. United States v. Johnson, 875 F.3d 1265, 1278 (9th Cir. 2017).
Here, the agent's testimony was not hearsay because it was admitted for a legitimate non-hearsay purpose: to show the statement's effect on the agents who were conducting the search and to explain why they focused their investigation on Cantizano. See United States v. Audette, 923 F.3d 1227, 1238 (9th Cir. 2019) (); Fed.R.Evid. 801(c). And because the non-testifying witness's statement did not constitute testimonial hearsay, there was no Confrontation Clause violation. See Johnson, 875 F.3d at 1278.
Even if the non-testifying witness's statements were inadmissible, any error was harmless. See United States v. Shayota, 934 F.3d 1049, 1052 (9th Cir. 2019). Contrary to Cantizano's assertion, the admitted testimony did not resolve "the contested issue of which computer actually belonged to [him], or whether another person was the primary user." At trial, the prosecution presented significant evidence that the laptop belonged to Cantizano. See Johnson, 875 F.3d at 1279 (). Nor did the government rely on the non-testifying witness's statement at closing argument. See id. ( that, in another case, "the prosecution's reliance on out-of-court statements during closing arguments indicated that the statements were intended for a hearsay purpose"). We therefore find that any error was harmless.
5. Jury Instructions and Constructive Amendment. Cantizano contends that the district court constructively amended Count 1 of his indictment. The jury instructions used at trial asked the jurors to find, as part of the "distribution" element, that "the defendant knowingly transported or shipped a visual depiction in interstate commerce by any means, including a computer." As the government concedes, the first element should have asked the jurors to find that "the defendant knowingly distributed a visual depiction that had been shipped or transported in interstate commerce by any means, including a computer."
As a threshold matter, the parties dispute whether we should interpret this argument as a claim of constructive amendment or as a challenge to the jury instructions. But we need not resolve this issue because Cantizano failed to object in the district court, and he cannot show plain error regardless of how the claim is framed. See United States v. Mickey, 897 F.3d 1173, 1183 (9th Cir. 2018); United States v. Conti, 804 F.3d 977, 981 (9th Cir. 2015).
Under plain error review, Cantizano cannot show that the error "seriously affected the fairness, integrity, or public reputation of the judicial proceedings." Mickey, 897 F.3d at 1183. The evidence presented at Cantizano's trial proved the "distribution" element overwhelmingly and beyond a reasonable doubt: (1) Cantizano maintained child pornography in a shared folder; (2) he knew that doing so would allow others to download the files, and (3) federal agents were able to download four files depicting child pornography from...
To continue reading
Request your trial