United States v. Chaparro, No. 18-2513

Citation956 F.3d 462
Decision Date13 April 2020
Docket NumberNo. 18-2513
Parties UNITED STATES of America, Plaintiff-Appellee, v. Michael L. CHAPARRO, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Michael D. Love, Attorney, Office of the United States Attorney, Rockford, IL, for Plaintiff-Appellee.

Steven H. Wright, Attorney, University of Wisconsin, Law School, Madison, WI, for Defendant-Appellant.

Before Flaum, Hamilton, and Barrett, Circuit Judges.

Hamilton, Circuit Judge.

A jury found Michael Chaparro guilty on three felony charges for viewing and transporting child pornography. The charges arose from three crimes separated by significant gaps in time: viewing child pornography on a hard drive in July 2013, transmitting child pornography files over the Internet in August 2014, and viewing child pornography on a smartphone in November 2014. Chaparro was sentenced to three concurrent prison terms of 210 months each. On appeal he challenges his convictions on three distinct grounds: the sufficiency of the evidence that he was the person using the electronic devices; the admission at trial of a statement that he made to Pretrial Services; and allegedly improper remarks by the prosecutor during rebuttal.

The first and third challenges were not raised in the district court and provide no basis to disturb the convictions. Granted, the government’s case could have been stronger as to the identity of the devices’ user. The computer forensics led investigators to a home, not to an individual, and little evidence showed that Chaparro resided at the relevant street address before December 2014. Nevertheless, there was sufficient evidence to sustain the convictions on plain-error review. Any improper rebuttal comments did not affect Chaparro’s substantial rights.

The admission of Chaparro’s pretrial services statement was an error, though. When Congress created Pretrial Services, it made pretrial services information "confidential" and specifically prohibited its admission "on the issue of guilt in a criminal judicial proceeding." 18 U.S.C. § 3153(c)(1) & (3). This rule may protect some accused defendants, but its most important benefits accrue to the judicial system as a whole. Confidentiality helps pretrial services officers obtain the information needed to make quick and accurate recommendations about pretrial release and detention.

This case concerns a judge-made impeachment exception to Congress’s mandate of confidentiality. In his pretrial interview, Chaparro had said that he lived at the scene of the crimes on all the relevant dates. The government left the record blank on that key point during its case in chief. Chaparro’s lone witness, his uncle Eddie Ramos, then testified that Chaparro did not live at the address until just before his arrest. As rebuttal, the government sought to call the pretrial services officer who interviewed Chaparro. The district court allowed the testimony, over objection, relying on cases from other circuits that have recognized an exception to pretrial confidentiality for impeachment. See, e.g., United States v. Griffith , 385 F.3d 124 (2d Cir. 2004).

Those precedents were inapposite, and it was a legal error to admit Chaparro’s statement to Pretrial Services. Chaparro’s words were not a prior inconsistent statement by Ramos, the testifying witness. Instead, the government used them for "impeachment by contradiction" against Ramos. Despite the "impeachment" label, someone else’s contradictory statement is relevant only if it is offered for the truth of the matter asserted. The statement by Chaparro was thus offered as evidence of guilt, a purpose specifically prohibited by statute. This error was not harmless for two of the three convictions. Considered for its truth, Chaparro’s statement filled a key gap in the government’s cases on the July 2013 and August 2014 charges. Those convictions must therefore be vacated. Chaparro is entitled to a new trial on those charges or, in the alternative, to resentencing on the remaining conviction.

I. Sufficiency of the Evidence

We first explain why the evidence was sufficient to support the jury’s guilty verdicts on all three charges. Our review on this question is limited to "plain error." Although Chaparro moved for a directed verdict under Rule 29 at the close of the government’s case, he failed to renew that motion at the close of all the evidence. He thus forfeited his sufficiency challenge, and we review for a "manifest miscarriage of justice." See United States v. Clark , 787 F.3d 451, 459 (7th Cir. 2015) ; United States v. Natale , 719 F.3d 719, 743 (7th Cir. 2013) ; United States v. Williams , 298 F.3d 688, 692 (7th Cir. 2002). Under this standard, we will overturn the jury’s verdict "only if ‘the record is devoid of evidence pointing to guilt, or if the evidence on a key element of the offense was so tenuous that a conviction would be shocking.’ " Natale , 719 F.3d at 743, quoting United States v. Turner , 551 F.3d 657, 662 (7th Cir. 2008).

We begin with some background common to all charges. The investigation started in August 2014 when an undercover detective in Pennsylvania, Robert Erdely, recorded the Internet Protocol (IP) address of a computer transmitting child pornography to him over the Internet. The IP address corresponded to an AT&T account in the name of Eva Chaparro, the defendant’s grandmother, with service at a home in McHenry, Illinois.1 Based on Erdely’s tip, Detective Michelle Asplund of the McHenry County Sheriff’s Office executed a search warrant at the home on December 2, 2014. Accompanying her was Zeus Flores, a forensic computer examiner with the Illinois Attorney General’s Office. When law enforcement arrived, only three people were in the house: Eva Chaparro, her husband Hector Chaparro—that is, the defendant’s grandfather—and Eddie Ramos, the defendant’s uncle.

Officers searched the home for computers and found two Gateway-brand laptops and a Compaq-brand desktop. Flores examined these computers on site and determined that the desktop’s hard drive contained child pornography. During the search, Michael Chaparro arrived at the home. The officers seized an LG-brand smartphone from him. The smartphone could not be examined on site, but Flores later determined that it too had child pornography stored in its memory.

A grand jury indicted Michael Chaparro on three charges. Count One charged him with transporting child pornography over the Internet to Erdely in August 2014. Counts Two and Three charged him with accessing child pornography with intent to view it on the LG smartphone in November 2014 and on the Compaq desktop in July 2013. For clarity, we address the sufficiency of the evidence as to the charges in chronological order rather than the order in the indictment.

A. Count Three – Accessing Material on the Hard Drive

Count Three charged Chaparro with accessing an image of child pornography stored on the Compaq desktop’s hard drive on July 30, 2013, in violation of 18 U.S.C. § 2252A(a)(5)(B). Chaparro concedes that the hard drive contained child pornography. He argues that the government failed to prove that he himself accessed any image on the hard drive or that there was a connection to interstate commerce.

The forensic evidence showed that someone used the hard drive to access child pornography on July 30, 2013. On the date of the search, December 2, 2014, Flores, the computer examiner, removed the hard drive from the Compaq desktop computer and analyzed it using special software. The desktop had not been powered on in over fifteen months, since August 24, 2013. But Flores was able to recover records of Internet searches for child pornography as well as images of child pornography from the drive. A user of the computer had downloaded a video on July 30, 2013 titled, in part, "11Yo Pedofilia." System logs indicated that folders containing child pornography had been opened by a user. Chaparro does not dispute these points.

The record also included circumstantial evidence that Michael Chaparro was the user of the hard drive on July 30, 2013. Most directly, the Compaq desktop had a single user account named "M1KEY." In addition, the officers found the desktop in an upstairs bedroom, and evidence suggested that this bedroom belonged to Michael Chaparro—at least on the date of the search. Detective Asplund testified without objection that Eva Chaparro told her it was Michael’s bedroom. Photographs of the room showed video-gaming equipment and sticks of men’s deodorant, items one might expect in the room of a 26-year-old man rather than his grandmother. Another photograph showed a partially obscured coffee mug with the printed letters " ... hael" visible.

On the other hand, Ramos testified that the room with the desktop computer was a "guest room/game room" and that Michael slept in a basement bedroom. Ramos also testified that the whole extended family, including his siblings, children, and grandchildren, stayed overnight at the house from time to time and used the computers. The jury was entitled to discount Ramos’s testimony on these points. As the government said in closing, the messy upstairs room—bed unmade, half-empty water bottles on the dressers, video-gaming equipment strewn about—did not resemble a guest bedroom.

Granted, there was little evidence of how long Michael Chaparro had slept in the room with the desktop computer, or even how long he had lived at his grandparents’ house. The only direct evidence of Chaparro’s past residency was his statement to Pretrial Services, admitted in the government’s rebuttal case as purported "impeachment," that he lived with his grandparents from December 2011 to December 2014. As explained below, the district court should not have admitted that confidential statement because it provided substantive evidence of guilt. But "a reviewing court must consider all of the evidence admitted by the trial court when considering a sufficiency of the evidence challenge,...

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