United States v. Jones, 17-1450

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtROGERS, Circuit Judge.
PartiesUNITED STATES OF AMERICA, Plaintiff-Appellee, v. TOMMY LEE JONES, Defendant-Appellant.
Docket NumberNo. 17-1450,17-1450
Decision Date24 August 2018

TOMMY LEE JONES, Defendant-Appellant.

No. 17-1450


August 24, 2018

File Name: 18a0440n.06


BEFORE: BOGGS, CLAY, and ROGERS, Circuit Judges.

ROGERS, Circuit Judge. Tommy Lee Jones was convicted of advertising, distribution, and receipt of child pornography in violation of 18 U.S.C. §§ 2251(d) and 2252A(a)(2), and he was sentenced to 660 months' imprisonment. Jones now challenges both his convictions and sentence. Jones asserts that a new trial is necessary because the district court judge's comments and conduct during the trial denied him his right to a fair trial. But while the district court judge's conduct was not model judicial behavior, Jones was not denied his right to a fair trial. Jones's other challenges to his convictions similarly do not warrant a new trial. Jones is correct, however, that it is necessary to remand the case for resentencing. The district court enhanced Jones's sentence under USSG § 2G2.2(b)(5) based, in part, on Jones's sexual relationship with his stepdaughter that began when she was sixteen years old, but, as the government conceded at oral argument, that relationship does not qualify as an instance of "sexual abuse or exploitation" under

Page 2

USSG § 2G2.2. Moreover, the district court failed to explain its decision to adopt the government's recommendation that "Vicky," a known victim of child pornography whose images were among those discovered on Jones's computer, be awarded $10,000 in restitution pursuant to 18 U.S.C. § 2259 and Paroline v. United States, 572 U.S. 434 (2014).


In October 2015, FBI Agent Raymond Nichols conducted an investigation to identify persons using Ares—an internet-based, peer-to-peer file-sharing program—to share child pornography. Using a law enforcement version of Ares, Nichols identified 24 files—all of which were being shared by a single computer—with file names or "hash values"1 known to be associated with child pornography. Nichols took screenshots of the suspected child pornography, downloaded all or part of the 24 files, and saved the files to a disk for further review. The files were determined to constitute child pornography. Upon further investigation, the FBI traced the files to an IP address belonging to Tommy Lee Jones, who worked for the internet service provider WOW! in Dearborn, Michigan. The agents learned that in 1991 a then-twenty-year-old Jones had pleaded guilty to unlawfully attempting to engage in sexual conduct with his eight-year-old sister.

On October 23, the FBI executed a search warrant at Jones's home. Jones and his twenty-one-year-old stepdaughter, Corrtney Jennings, were the only people at home at the time of the search. While searching the basement, where Jones and Jennings shared a bedroom, agents discovered an ASUS laptop containing more than 20 video files depicting children engaged in sexual activity, including files matching those Agent Nichols had identified during his online investigation. The files had been saved to a "share" folder on the laptop's desktop, and a forensic examination of the laptop showed that the Ares program was set up so that other Ares users could

Page 3

download files from the "share" folder, but they could not add things to the folder or access other parts of the laptop's hard drive.

Although the agents informed Jones and Jennings that they could leave while the search was being conducted, they both chose to stay. Agent Nichols and FBI Agent Lauren Williamson interviewed Jones at the scene. According to Agents Nichols and Williamson, Jones admitted that the ASUS laptop was his main computer, and he explained that his home had password-protected Internet connections, both wired and wireless. Jones also admitted using Ares to download child pornography, but he estimated that he had done so "less than 100" times.

Jones was not arrested immediately. Instead, the agents asked whether he would be willing to go to the FBI office for further questioning, and he agreed. At the FBI office, Jones waived his Miranda rights and agreed to be interviewed by FBI Agent Michael Fitzgerald. During the interview, Jones confirmed that he had pleaded guilty in 1991 to a sexual offense involving a young family member, and he again admitted using Ares to download child pornography. Jones also disclosed that he and Jennings had a sexual relationship—beginning when she was sixteen—and that she was pregnant with his child.

Jones was indicted on five counts related to the production (count I), advertising (count II), distribution (count III), receipt (count IV), and possession (count V) of child pornography. The government later voluntarily dismissed count I, and Jones proceeded to trial on the four remaining counts.

The government called four witnesses at trial: Agent Nichols, Agent Williamson, Agent Fitzgerald, and FBI Agent Adam Christensen, who had seized the ASUS laptop during the search. In addition to the videos found on the laptop, the government also presented forensic evidence that Agent Nichols had pulled from the Ares software. The Ares download log revealed that hundreds

Page 4

of other files with names consistent with child pornography had been accessed through the Ares program, and numerous search terms associated with child pornography had been typed into the Ares search engine from the laptop, e.g., "PTHC" (pre-teen hard core), "PTHC brutal," "pedo," etc.

Jones conceded that the government's exhibits were child pornography, but he claimed that someone in his neighborhood had downloaded the files to his computer without his knowledge after he installed an "internet extender" that gave his neighbors access to his wifi network. Jones's son, Tommy Jones III, and Jennings both testified that Jones had an "open" wifi network, and they asserted that anyone within range of the network could store files on Jones's computer without his knowledge. Jennings also testified that the ASUS laptop belonged to her and that she had downloaded the Ares software so that she could search for popular movies.

Jones also testified that his wifi network and computer were "open." He contradicted Agent Nichols' testimony regarding their conversation during the search, claiming that he had told the agents that he had multiple wifi connections, some password-protected and some not. He also claimed that he had never downloaded child pornography, or "[i]f I did, it was by accident." Finally, Jones admitted making the statements attributed to him by Agent Fitzgerald, but he claimed that he had agreed to say whatever Agent Fitzgerald wanted because he was "scared" and "tired."

Jones was convicted of counts II-V, but because count V (possession) was based on the same images that formed the basis of count IV (receipt), count V was dismissed pursuant to United States v. Ehle, 640 F.3d 689, 693 (6th Cir. 2011). Jones was then sentenced to 660 months' imprisonment—300 months on count II (advertising), 180 months on count III (distribution), and 180 months on count IV (receipt), all to run consecutively. Jones was also ordered to pay $10,000

Page 5

in restitution to Carol L. Hepburn in trust for "Vicky," a victim in three of the child pornography videos found on Jones's computer.

Jones appeals. While his challenges to his convictions are without merit, the district court did err in crafting Jones's sentence, and it also did not adequately explain its adoption of the government's restitution proposal.


Jones first argues that the district court's comments towards defense counsel and interjections during the trial denied him his right to a fair trial. But while the district court's conduct fell short of model judicial behavior, a review of the entire record indicates that Jones received a fair trial, and the district court's conduct was not an abuse of discretion. Most of the comments, read in context, amounted to inartful attempts by the district court to promote trial efficiency and to ensure that defense counsel focused on relevant issues. Accordingly, the district court's conduct did not fall so demonstrably outside the acceptable range of judicial behavior such that it amounted to hostility or bias toward Jones.

Jones complains primarily about the district court's comments and interjections during defense counsel's cross-examination of Agent Nichols. On three occasions the district court sua sponte admonished defense counsel that his questions were not relevant to the issues that the jury had to decide or that he was "wasting the jury's time." The district court made three more similar comments to defense counsel while resolving government objections.

We have previously found that such comments do not necessarily amount to reversible error. See United States v. Powers, 500 F.3d 500, 511-14 (6th Cir. 2007). In Powers, the same presiding district judge made twenty-six comments like the ones cited by Jones—e.g., "All right. This is not helping the jury. Go onto something else," "Let's go onto something else. This is

Page 6

wasting the jury's time," "I think that we're pretty much at the end of my tether on this kind of cross-examination," id. at 505, n. 5—and we concluded that "[t]he conduct to which Defendant objects falls within the range of 'acceptable, though not necessarily model, judicial behavior.'" Id. at 513 (citation omitted). Moreover, the trial transcript here demonstrates that defense counsel did tend to ask confusing or irrelevant questions, and a trial judge "may interject himself into the trial, speak to counsel, and question witnesses in order to clear up confusion regarding evidence or aid in its orderly presentation." Id. at 511 (citing McMillan v. Castro, 405 F.3d 405, 410 (6th Cir. 2005)). For example, the district court's first sua sponte interjection came after defense counsel engaged in a lengthy...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT