United States v. Juhic

• Decision Date: 31 March 2020
• Docket Number: No. 19-1151,19-1151
• Citation: 954 F.3d 1084
• Parties: UNITED STATES of America Plaintiff Appellee v. Nedzad JUHIC Defendant Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

954 F.3d 1084

UNITED STATES of America Plaintiff Appellee

v.Nedzad JUHIC Defendant Appellant

No. 19-1151

United States Court of Appeals, Eighth Circuit.

Submitted: January 17, 2020

Filed: March 31, 2020

Counsel who presented argument on behalf of the appellant and appeared on the brief was Heather Quick, AFPD, of Cedar Rapids, IA.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Craig Peyton Gaumer, AUSA, of Des Moines, IA.

Before COLLOTON, SHEPHERD, and ERICKSON, Circuit Judges.

ERICKSON, Circuit Judge.

Nedzad Juhic appeals his conviction for transportation and receipt of child pornography in violation of 18 U.S.C. §§ 2252(a)(1)- (2), (b)(1). Juhic challenges the district court’s¹ denial of his motion for the court to appoint its own expert to examine Agent Simon’s laptop, his proposed jury instruction on innocent intent, and his motion to continue jury deliberations. Juhic also appeals the admission of computer-generated reports. We affirm.

I. Background

In June 2015, Homeland Security Special Agent Aaron Simon was investigating peer-to-peer child pornography distribution in Iowa using an automated Child Protection System ("CPS"). The program located an IP address potentially sharing child pornography. Agent Simon used ShareazaLE, another law enforcement program, to connect to the IP address and download 42 files containing child pornography. Agent Simon downloaded 10 files from a second IP address. Further investigation revealed that both IP addresses were registered to Juhic.

Officers executed a search warrant on September 30, 2015, at Juhic’s residence. Juhic was not home, but he and his wife went to Agent Simon’s office a few days later. Agent Simon and Juhic had a voluntary conversation. Agent Simon called a Bosnian-speaking police officer to translate if needed. During their conversation, Juhic stated that he was the only one who used his laptop, that he had "maybe a thousand" videos of child pornography, that he shared videos with people he chatted with online, and that he knew the children in the videos were under eighteen. Juhic voluntarily provided his personal laptop to Agent Simon. Forensic analysis of the laptop in late September 2015 revealed 1,548 videos and 38 images of child pornography.

Before trial, Agent Simon mistakenly believed that he had lost access to the downloads from the case due to a ransomware attack on one of his undercover laptops. This belief was conveyed to Juhic’s counsel. Shortly thereafter Agent Simon realized that he had searched for the materials on the wrong laptop and that the ransomware issue had been resolved prior to the investigation of Juhic. Because of the conflicting accounts, Juhic asked the district court to appoint its own expert to examine Agent Simon’s undercover laptop. In support of his motion Juhic argued that it was possible that the child pornography on his laptop had been placed there by the ransomware on Agent Simon’s undercover laptop. The court stated, "I don’t think it’s an appropriate thing for the Court to get involved in essentially investigating, on behalf of one side or the other, this issue" and denied the motion. The court also denied Juhic’s proposed jury instruction on innocent intent because it did not believe that the instruction was a correct statement of law. The court noted that an instruction on Juhic’s proposed theory would be more confusing than helpful to the jury.

At trial, the government introduced multiple computer-generated reports during Agent Simon’s testimony. The reports were automatically generated by the CPS and ShareazaLE programs based on interactions with Juhic’s IP addresses. The reports included notations identifying whether files were "child-notable" or part of a "series" of child pornography that had been submitted to the National Center for Missing and Exploited Children ("NCMEC"). Juhic objected to the reports as inadmissible hearsay. The court admitted the exhibits as business records under Federal Rule of Evidence 803(6).

After instructions and the closing arguments, the court submitted the case to the jury and dismissed the alternate jurors. During deliberations a juror informed the court that she was suffering from a migraine. The court spoke with the juror and determined that she was able to continue with deliberations. The court denied Juhic’s motion to continue deliberations until the following morning. Approximately 45 minutes later, the jury found Juhic guilty of receipt and transportation of child pornography.

II. Discussion

A. Court Appointed Expert

Juhic argues that the district court erred in denying his request for a court appointed expert to examine Agent Simon’s undercover laptop under Federal Rule of Evidence 706.² We review a district court’s decision not to appoint an expert witness for abuse of discretion. See United States v. Provost, 875 F.2d 172, 175 (8th Cir. 1989) ("A trial court has broad discretion to grant application for appointment of an expert witness."); see also Toney v. Hakala, 556 F. App'x. 570, 571 (8th Cir. 2014) (unpublished).

Rule 706 allows the district court to use its "discretion to procure the assistance of an expert of its own choosing." Sorensen ex rel. Dunbar v. Shaklee Corp., 31 F.3d 638, 651 (8th Cir. 1994) ; accord U.S. Marshals Serv. v. Means, 741 F.2d 1053, 1057–58 (8th Cir. 1984) (en banc) (stating that a district court has discretionary power to call its own expert witness). In ruling on the issue at a pretrial hearing, the court did not find reason to believe that further investigation of Agent Simon’s laptop would lead to exculpatory information.

Juhic has presented no evidence in support of his theory that ransomware on Agent Simon’s laptop planted child pornography on Juhic’s laptop. Juhic’s own expert had an opportunity to look for artifacts of malware on Juhic’s laptop and found no evidence of ransomware. At trial, it was established that the ransomware infecting Agent Simon’s undercover laptop had been mitigated and ShareazaLE reinstalled by April 20, 2015. The files found on Juhic’s laptop were downloaded between July and September 2015, months after Agent Simon used his laptop to monitor Juhic’s IP address in June 2015. Testimony at trial also established that ShareazaLE could not upload programs to other computers and that the ransomware on Agent Simon’s undercover laptop was not the type that attempted to infect other machines. Juhic provided no justifiable reason for the court to appoint its own expert, and the court did not abuse its discretion when it refused to do so.

B. Innocent Intent

Juhic contends that the court erred in refusing to allow him to present his innocent intent theory to the jury. We review a district court’s decision to deny a defendant’s proposed jury instruction for abuse of discretion. United States v. Parker, 871 F.3d 590, 604 (8th Cir. 2017). We will affirm jury instructions that, when "taken as a whole, fairly and adequately submitted the issues to the jury." Id. (quotation marks omitted).

We have recognized defenses based on perceived government authority, including public authority, entrapment by estoppel, and innocent intent. United States v. Xiong, 914 F.3d 1154, 1159–60 (8th Cir. 2019). The innocent intent defense is based on a contention that the government failed to prove the defendant possessed the crime’s required criminal intent. Id. However, transportation and receipt of child pornography do not require criminal intent, merely knowledge. See 18 U.S.C. §§ 2252(a)(1) ("knowingly transports"), (a)(2) ("knowingly receives"). Juhic admitted to Agent Simon that he knew he possessed and shared child pornography. Why Juhic possessed the child pornography does not matter. Additionally, because Juhic admitted that he never spoke to law enforcement before collecting child pornography videos, he could not submit a public authority defense. See Xiong, 914 F.3d at 1160. The district court did not abuse its discretion in denying Juhic’s innocent intent theory.

C. Computer Generated Reports

Juhic argues that the district court erred by admitting computer-generated reports because they contained inadmissible hearsay. The court admitted the exhibits as business records. On appeal, the government abandons the business record exception and argues that the reports were not hearsay at all.

Exhibits 1 and 3 were automatically generated CPS reports that include a "child-notable" notation on 474 files offered by Juhic’s account. A "child-notable" file is a category of file that law enforcement provides to CPS when they find known child pornography. The notation is based on law enforcement placing the hash values of previously identified child pornography into the CPS system. The process of searching for "child-notable" files, generating log files, and generating reports is automated. Trial testimony established that the report’s data comes from criminal investigations, including prosecutions, and is considered to be "like a police report." Exhibits 2 and 4 were automated summary reports of what the ShareazaLE program automatically downloaded from Juhic’s account, which files it tracked, and what has been done with those files. The summary reports include notations showing whether a file was part of a named child pornography series submitted to NCMEC.

We review a district court’s contested hearsay rulings for an abuse of discretion and will not reverse if the error was harmless. United States v. Iu, 917 F.3d 1026, 1033 (8th Cir. 2019). "An evidentiary error is harmless if the record demonstrates that the defendant’s substantial rights were unaffected and that the error did not influence or had only a slight influence on the verdict." United States v. Lundstrom, 880 F.3d 423, 440 (8th Cir. 2018) (quotation marks omitted). Erroneously admitting evidence that is...