United States v. Grzybowicz

• Decision Date: 04 April 2014
• Docket Number: No. 12–13749.,12–13749.
• Citation: 747 F.3d 1296
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael GRZYBOWICZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

747 F.3d 1296

UNITED STATES of America, Plaintiff–Appellee,

v.Michael GRZYBOWICZ, Defendant–Appellant.

No. 12–13749.

United States Court of Appeals, Eleventh Circuit.

April 4, 2014.

Yvette Rhodes, Robert E. O'Neill, U.S. Attorney's Office, Tampa, FL, Tanya Davis Wilson, U.S. Attorney's Office, Orlando, FL, for Plaintiff–Appellee.

Michelle P. Smith, Law Office of Michelle P. Smith, PA, Orlando, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 6:11–cr–00100–ACC–DAB–1.

Before CARNES, Chief Judge, HULL and GARZA,^* Circuit Judges.

CARNES, Chief Judge:

The facts that gave rise to this case could make any parent reluctant to let a friend look after her child, even for as little as five or ten minutes, and even in a public place.

I.

Michael Grzybowicz and Patricia Cochrum worked at the same restaurant. As friends, they planned a joint trip to an amusement park with their families to celebrate her birthday. The plan was that she would bring her boyfriend and two kids, while Grzybowicz would bring his wife and son. Grzybowicz may have known all along that his wife would not be coming because she did not like Cochrum, whom she suspected—without any basis so far as the record shows—of having an affair with her husband. In any event, after leading Cochrum to believe that his family would be with him, Grzybowicz showed up at the park by himself on February 17, 2011, claiming that his wife and son were both sick. Cochrum was there with her boyfriend and her two children, a five-year-old son and a two-year-old daughter. They entered the amusement park at 10:07 a.m.

After the group had been enjoying the amusements at the park for about four hours, Grzybowicz insisted that Cochrum ride a roller coaster with her boyfriend while he looked after her two children. She accepted what appeared to be a kind offer from her coworker and friend, entrusting her children to him in that public place for a total of five to ten minutes. At the beginning of the roller coaster ride Cochrum could see Grzybowicz and her children, but she soon lost sight of them. From the evidence at trial, the best estimate is that Cochrum and her boyfriend got on the ride a short time before 2:08 p.m., and security camera recordings show that they got off of it at 2:14 p.m. They then rejoined Grzybowicz and the two children. The group left the park at 2:38 p.m., which was four-and-a-half hours after they had entered it.

On the car ride home from the amusement park, Cochrum's daughter complained that her genital area was hurting. Cochrum was not too alarmed because she assumed that the complaint was about a rash that the little girl had had for awhile. When they got home, Cochrum changed her daughter's diaper and noticed that its adhesive straps were not placed the same way that she had placed them earlier that day, which she would later realize was “a red flag.” At the time, however, Cochrum dismissed it because her daughter occasionally played with her diaper straps. What had happened to the two-year old girl might have gone undetected but for events at the Grzybowicz house.

Two days after the trip to the amusement park, on the morning of February 19, 2011, Grzybowicz's wife, Bette Schuster, examined his cellphone. She noticed that he had received a text message from a sender she did not know. Schuster regularly checked her husband's cellphone because, as we mentioned before, she suspected him of having an affair with Cochrum. Her suspicion was ironic because Schuster herself was having an affair with a police officer named Richard Bartholomay, who had slept at the Grzybowicz home the night before.

In any event, when she checked the outbox of Grzybowicz's phone that morning, Schuster saw four photographs that had been sent from his phone to an email address she did not recognize. The photographs depicted: (1) a man's hand opening the vagina of a small child wearing a yellow dress; (2) the man's finger inserted into the child's vagina; (3) the man's hand pulling back a diaper to reveal the child's vagina; and (4) the child's diaper and exposed vagina. Schuster immediately showed the photographs on the phone to Bartholomay and then called the police department.

When Officer Frank Gay arrived at the residence in response to the call, Schuster handed him her husband's cellphone and showed him the photographs. Officer Gay then awoke Grzybowicz, who was asleep in one of the bedrooms, and asked him to go to the police station and talk to an investigator. He agreed to do so. He also consented to a search of his home, his cellphone, and his laptop computer.

Grzybowicz's computer and cellphone, both of which were manufactured outside of the United States, were sent for forensic analysis by Agent Daniel Ogden. The examination showed that the computer contained two user profiles.¹ One of them, which was labeled “New,” was password protected and had been created on February 11, 2011, less than a week before the trip to the amusement park. (Although Schuster shared the laptop with her husband, she did not know the password for his protected profile or even how a person could create a user profile.)

Agent Ogden gained access to Grzybowicz's password-protected user profile and used it to find 79 images of child pornography on the computer, including two of the four photographs of the little girl being exposed and molested that were also on Grzybowicz's cellphone.² Some of those 79 child pornography images on the user profile had been deleted, some were stored in temporary internet files, and some were saved in a file folder labeled “Pictures.” The images stored in that folder included depictions of infants and young girls with their vaginas exposed.

The “New” user profile's internet history also contained links to Grzybowicz's Yahoo account, which is the email address to which the four graphic photographs of the little girl's vagina that were found on Grzybowicz's cellphone had been sent. That was the same email address his wife had seen but not recognized when she inspected the cell phone the morning of February 19, 2011. In addition, the “New” user profile also contained download information, including the file name, for at least one of the images sent from his cellphone to that email address. And it had several links to a file-sharing website for child pornography.

Analysis of Grzybowicz's cellphone revealed that the four photographs of a little girl's vagina that his wife had discovered on his cell phone were created between 2:08 and 2:12 p.m. on February 17, 2011, which was during the five to ten minutes that he had been alone with Cochrum's two-year-old daughter and five-year-old son.³ Those four digital images had been sent from Grzybowicz's cell phone to his Yahoo account, links to which had been found in the user profile that he kept password-protected and hidden from his wife. They were sent from his cellphone to his Yahoo account that same day, around 2:45 p.m., which was seven minutes after he left the amusement park.

Cochrum later identified the dress visible in the four photographs on Grzybowicz's cell phone as the yellow and white-striped dress that her daughter was wearing when she had entrusted the little girl to Grzybowicz's care. She gave the dress to the police.

II.

Grzybowicz was indicted on charges of sexual exploitation of a minor to produce child pornography, in violation of 18 U.S.C. § 2251(a) (Count 1); distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) (Count 2); and possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 3). During the four-day trial, the government called six witnesses, including Agent Ogden, Cochrum, and Grzybowicz's wife; it introduced into evidence the four photographs that Grzybowicz's wife had found on his cell phone, several of the other pornographic images that had been found on his computer, and the yellow dress worn by Cochrum's daughter during the visit to the amusement park. Based on that dress, Cochrum identified her daughter as the small child depicted in the explicit photographs that were on Grzybowicz's cellphone, two of which had been downloaded onto his computer.

The government also introduced a videotaped interview with Grzybowicz. At one point during that interview a detective had asked Grzybowicz: “[W]hen you were accused of the first time of taking some inappropriate pictures, did you see the pictures that were taken?” To avoid even the possibility of unfair prejudice from that statement, the Assistant United States Attorneyprosecuting the case promised that the paralegal who would be operating the audio-video machinery during that part of the trial would stop the recording before the detective's reference to “the first time of taking some inappropriate pictures” and skip over that part.

That was an entirely reasonable way to handle the matter but, of course, Murphy's Law is antithetical to reasonable solutions. When the recording was played for the jury the paralegal operator inadvertently failed to stop the recording when it should have been, a failure that resulted in the jury hearing the detective's question. Defense counsel objected and moved for a mistrial. Outside the jury's presence, he asserted that the question impermissibly suggested that Grzybowicz had been accused of committing a similar offense in the past. The AUSA confirmed that Grzybowicz had been accused of similar conduct in the past but argued that the detective's question did not clearly refer to any earlier allegations of child pornography and that a listener would not necessarily assume that it did. Instead, she argued, the inference that the defense feared was itself questionable because the detective's question could just as easily be understood as referring to Officer Gay's questioning of Grzybowicz at his home on the morning of February 19th, which was about the photographs involved in this...