United States v. Cowan
| Decision Date | 19 November 2012 |
| Docket Number | No. 11-15989,D.C. Docket No. 3:09-cr-00387-TJC-MCR-1,11-15989 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT ALLAN COWAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
Appeal from the United States District Court
for the Middle District of Florida
Before DUBINA, Chief Judge, MARCUS and KRAVITCH, Circuit Judges.
Appellant Robert Allan Cowan appeals his convictions and total 1,680-month sentence for three counts of sexual exploitation of a minor through thereceipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2); two counts of sexual exploitation of a minor through the production of child pornography, in violation of 18 U.S.C. § 2251(a); and two counts of sexual exploitation of a minor through the possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). On appeal, Cowan argues that: (1) the district court admitted impermissible expert testimony at trial; (2) there was insufficient evidence to support his possession and receipt convictions; (3) the court failed to adequately explain the reasons for its sentence; (4) the court made numerous guideline calculation errors; and (5) the 1,680 month sentence imposed was substantively unreasonable. Cowan alleges that the court made eight errors in calculating his guideline range, arguing that the court improperly: (1) calculated the base offense level for the group of convictions that included his receipt and possession convictions; (2) imposed the four-level U.S.S.G. § 2G2.2(b)(4) depiction of sadistic or masochistic conduct enhancement; (3) imposed the five-level § 2G2.2(b)(5) pattern of activity of sexual abuse enhancement; (4) calculated the number of images attributable to Cowan, resulting in a five-level § 2G2.2(b)(7)(D) enhancement; (5) imposed the two-level § 3C1.1 obstruction of justice enhancement to his production convictions; (6) failed to apply the two-level 2G2.2(b)(1) reduction; (7) imposed the 2G2.1(b)(2)(A) commission of a sexual act enhancement to his production counts; and (8) calculated the multiple countadjustment. After reviewing the record and reading the parties' briefs, we affirm Cowan's conviction and his total sentence.
We generally review decisions regarding the admissibility of expert testimony for abuse of discretion. United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc). When an appellant did not contemporaneously object to an evidentiary ruling below, we are limited to review for plain error. United States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). Plain error is: (1) an error; (2) that is plain; and (3) affects substantial rights. But we will only correct such error if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 1275-76.
Federal Rule of Evidence 702 governs the admissibility of expert testimony. A qualified witness may offer expert testimony if: (a) the witness's scientific, technical or specialized knowledge is helpful to a trier of fact; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the witness reliably applied the principles and methods to the facts of the case. Fed. R. Evid 702. Under Daubert, the trial court must determine whether an expert's testimony is based on reasoning or methodology that is scientifically valid and whether that methodology can beapplied to the facts at issue. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93, 113 S. Ct. 2786, 2796 (1993).
Where a witness is not qualified as an expert, he may nonetheless offer opinion testimony pursuant to Federal Rule of Evidence 701. Opinion testimony is admissible so long as it is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the testimony or to determining a fact in issue; and (c) not based on knowledge within the scope of Rule 702. Fed. R. Evid. 701. A witness may give otherwise admissible opinion testimony that affects an ultimate issue in a case unless that opinion concerns the mens rea of a criminal defendant. Fed. R. Evid. 704.
A police officer witness's conclusion that images are pornographic in nature does not require qualification as an expert, and is admissible subject to the Rule 701 requirements. United States v. Smith, 459 F.3d 1276, 1297 n.18 (11th Cir. 2006). In Smith, the appellant argued that the officer's testimony was improper opinion evidence offered by a non-expert. Id. We held that it was not plain error when the district court failed to strike that testimony for violating Rule 702. See id. at 1296-97 & n.18.
Cowan's argument on appeal is that ICE Special Agent James Greenmun offered impermissible expert testimony when he testified that the photographs Cowan took of his daughter constituted pornography. On appeal, Cowan raisesonly Rule 702 and Daubert as reasons why Greenmun's testimony should not have been admitted.
Cowan did not raise an objection to the challenged testimony in the district court, so we review this issue for plain error only. See Turner, 474 F.3d at 1275. While the court, without objection, qualified Greenmun as an expert, his expertise was limited to computer forensics. His testimony that Cowan's photographs constituted pornography was an opinion separate from the expert testimony he was qualified to offer. Under Smith, Rule 702 does not govern a witness's opinion testimony that an image constituted pornography. See Smith, 459 F.3d at 1297 n.18. Therefore, Cowan's argument on appeal fails to meet step one of plain error review.
We review de novo whether sufficient evidence supports a conviction, drawing all reasonable factual inferences from the evidence in favor of the verdict. United States v. Beckles, 565 F.3d 832, 840 (11th Cir. 2009). Evidence is sufficient to support a conviction if a reasonable trier of fact could find that it established guilt beyond a reasonable doubt. Id.
Under 18 U.S.C. § 2252(a)(2), it is a crime to knowingly receive material containing a depiction of a minor engaging in sexually explicit conduct. Under 18 U.S.C. § 2252(a)(4)(B), it is a crime to knowingly possess material containing adepiction of a minor engaging in sexually explicit conduct. The word "knowingly" in § 2252 applies both to the relevant action, such as receipt, and to the nature of the material in question. See United States v. X-Citement Video, Inc., 513 U.S. 64, 68-69, 78, 115 S. Ct. 464, 467, 472 (1994) ().
We have previously applied the X-Citement Video reasoning to a § 2252(a)(4)(B) possession of child pornography conviction. See United States v. Alfaro-Moncada, 607 F.3d 720, 733 (11th Cir. 2010), cert. denied, ______U.S. ________, 131 S. Ct. 1604 (2011). In Alfaro-Moncada, we held that there was sufficient evidence to support the appellant's knowing possession of child pornography where the appellant: possessed DVDs that had covers that suggested that they contained child pornography; admitted to watching a "little bit" of the videos; and, although he had testified that he intended to dispose of the videos, placed the DVDs in his desk drawer. Id. at 732-34.
Where a defendant testifies at trial, he runs the risk that the jury might disbelieve him and conclude that the opposite of his testimony is true. United States v. Williams, 390 F.3d 1319, 1325 (11th Cir. 2004). Accordingly, where there is some corroborative evidence of a defendant's guilt, the defendant's testimony denying guilt may, by itself, establish elements of the offense. Id. at1326. We have previously noted that this rule is particularly relevant where the testimony concerns subjective elements such as the defendant's intent or knowledge. Id.
Cowan's only argument regarding sufficiency of the evidence on appeal is that insufficient evidence supported a conclusion that he had the requisite mens rea to commit the receipt and possession offenses. However, there was sufficient evidence, granting every reasonable inference in favor of the verdict, to support a conclusion that Cowan knew that: (1) he received material containing child pornography; and (2) he possessed material containing child pornography.
Cowan testified that he inadvertently received the files containing child pornography when he searched on Lime Wire for martial arts and naval videos, using search terms like "torpedo." He also testified that he never knowingly downloaded a file if it had a file name that was indicative of child pornography, and if he did accidentally download such a file, he would delete it as soon as he saw the file name. The jury was free to disbelieve that testimony, and conclude that the opposite was true. See Williams, 390 F.3d at 1325. A conclusion that Cowan knowingly received the files can be corroborated by the fact that, despite his testimony that he would delete files with file names indicative of child pornography, he had files with such names on his media devices. See Alfaro-Moncada, 607 F.3d at 733 (). Cowan admitted that he knew that the file names were indicative of child pornography, because he kept a list of terms that were used to identify files that had child pornography. Since there was evidence corroborating Cowan's guilt, his testimony denying guilt supported his convictions for receiving child pornography, particularly because Cowan was testifying regarding his subjective intent. See Williams, 390 F.3d at 1326.
Cowan's testimony that he intended to delete all of the child pornography from his media devices, even though child pornography was found on his external hard drives, also supported his possession...
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