United States v. Morrow
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EARL HARDY MORROW, Defendant-Appellant. |
| Decision Date | 21 August 2023 |
| Docket Number | 22-5060 |
1
UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
EARL HARDY MORROW, Defendant-Appellant.
No. 22-5060
United States Court of Appeals, Tenth Circuit
August 21, 2023
Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:20-CR-00335-CVE-1)
Benjamin Miller, Salt Lake City, Utah, for Defendant - Appellant.
Jeffrey Andrew Gallant, Assistant United States Attorney (Amy E. Potter, Assistant United States Attorney, District of Oregon, and Clinton J. Johnson, United States Attorney, Northern District of Oklahoma, on the brief), Office of the United States Attorney, Tulsa, Oklahoma, for Plaintiff - Appellee.
Before HARTZ, SEYMOUR, and MATHESON, Circuit Judges.
HARTZ, CIRCUIT JUDGE.
Defendant Earl Hardy Morrow appeals his convictions for distribution, receipt, and possession of child pornography. See 18 U.S.C. § 2252. Mr. Morrow argues that the district court erred in (1) permitting the government to present evidence that his
electronic devices contained pornographic anime, contrary to the restrictions on the use of other-act evidence under Fed.R.Evid. 403 and 404(b); (2) preventing him from offering statements against interest by his brother Kory under Fed.R.Evid. 804(b)(3); and (3) failing to correct the government's statement at closing argument that Kory had not yet been prosecuted when charges against him had in fact been dropped. Mr. Morrow also argues that the cumulative effect of these errors requires reversal.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm Mr. Morrow's convictions. The district court did not abuse its discretion in admitting the government's other-act evidence or in excluding Kory's statements against interest, nor did it commit reversible error in failing to correct the government's misstatement during closing argument. There being at most one error, Mr. Morrow's cumulative-error argument also fails.
I. BACKGROUND
Between January 23 and February 20, 2020, the Tulsa Police Department (TPD) used the BitTorrent peer-to-peer filesharing network to download multiple files of child pornography from a local IP address.[1] One of these Torrent files,
entitled "Web Video Collection" and containing 99 individual video files, was downloaded on February 20 from an individual using version 4.2.1 of a BitTorrent software program called qBitTorrent.
TPD obtained a search warrant for a residence in Broken Arrow, Oklahoma, that was associated with the IP address from which they had downloaded the files. Mr. Morrow lived at that address with his brother Kory and his mother Karla. On February 27, officers executed the warrant. They took 20 electronic devices from the home.
Ten computers and digital-storage devices were seized from Mr. Morrow's bedroom. Five of those 10 devices were later found to contain over 4,000 illegal images and videos depicting the sexual abuse of children: (1) a password-protected, custom Diablotek desktop computer built by Mr. Morrow himself on which the qBitTorrent program and over 600 images and videos were stored; (2) a password-protected Acer laptop on which over 100 images and videos were stored; (3) a thumb drive (a small, portable digital-storage device) connected to a keychain holding Mr. Morrow's car keys, on which over 3,000 images and videos were stored; (4) a second thumb drive on which 5 videos were stored; and (5) a third thumb drive on which
over 500 images and videos were stored.[2] In addition to images and videos, both the Acer laptop and the third thumb drive also contained a text file titled "Daddy's Collection," which listed search terms to be used in locating child pornography online; TPD's forensics software identified the author of the document as "Earl."
Mr. Morrow's Diablotek desktop computer was the only device in the home on which was installed qBitTorrent, the program that had distributed the "Web Video Collection" Torrent file from the Morrows' IP address to the police; the version number of the qBitTorrent program installed on the Diablotek computer matched the version number of the program to which the police had connected. And the Diablotek was also the only device containing the file itself. Forensic analysis showed that the file had been accessed multiple times on that device. On the Acer laptop, most of the illegal files were created on February 13 and 14, shortly after a new user profile and password were set up in Mr. Morrow's name. Other documents that Mr. Morrow admitted to authoring, including files of creative writing and a letter to a prospective publisher, were created under the same user profile on February 13, and the author of these files was identified as "Earl." TPD analysts found neither viruses nor evidence of remote control (that is, hacking) on Mr. Morrow's computers.
The other 10 devices were seized from Kory's bedroom. From two of these, police later recovered 37 image files (but no videos) depicting the sexual abuse of
children. Also, Kory's computer was the only seized device to contain version 3.55 of a Torrent program called uTorrent (although Mr. Morrow's Diablotek computer contained a search history and icons indicating that uTorrent version 3.5.5 may have been installed on it at an earlier time). This may have been significant because on January 23, 2020, TPD had downloaded a file with unlawful content from the Morrows' IP address from an individual using that version of that program.
A grand jury in the United States District Court for the Northern District of Oklahoma indicted Mr. Morrow on one count of distribution and receipt of child pornography and one count of possession of child pornography. Kory was indicted on the same two charges but they were dismissed before Mr. Morrow's trial. The charges were tried to a jury in November 2021. Mr. Morrow was the sole witness for the defense. He denied downloading, distributing, or knowingly possessing the illegal photos and videos found on his devices. The jury convicted him on both counts.
We will include additional background as we discuss the specific issues raised on appeal.
II. DISCUSSION
A. Admission of Pornographic Anime as Other-Act Evidence
Mr. Morrow contends that the district court abused its discretion in admitting evidence that police recovered from Mr. Morrow's devices not only 4,000 illegal photos and videos but also 300 anime images depicting child sex abuse in cartoon form. (Such images are not covered by 18 U.S.C. § 2252.)
1. Evidentiary Rules and Standard of Review
Under Fed.R.Evid. 404(b)(1), "Evidence of any other crime, wrong, or act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Such evidence is commonly referred to as propensity evidence. But Fed.R.Evid. 404(b)(2) provides that such other-act evidence "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." "This list of permissible uses is illustrative, not exhaustive," and, generally speaking, Rule 404(b) "admits all other-act evidence except that tending to prove only [the defendant's] propensity" to commit the crime charged. United States v. Armajo, 38 F.4th 80, 84 (10th Cir. 2022). Four requirements must be satisfied to protect against unduly prejudicial evidence being admitted under Rule 404(b): (1) the evidence must be offered for a proper purpose, (2) it must be relevant under Fed.R.Evid. 401, (3) its probative value cannot be substantially outweighed by its prejudicial effect under Fed.R.Evid. 403, and (4) the district court must, upon request, instruct the jury on the proper (and improper) use of the evidence. See Huddleston v. United States, 485 U.S. 681, 691-92 (1988).
The determination of admissibility under Rule 404(b)(2) "involves a case-specific inquiry that is within the district court's broad discretion." United States v. Cushing, 10 F.4th 1055, 1075 (10th Cir. 2021) (internal quotation marks omitted). The court's ruling will be upheld on appellate review "if it falls within the bounds of
permissible choice in the circumstances and is not arbitrary, capricious or whimsical." United States v. Martinez, 923 F.3d 806, 814 (10th Cir. 2019) (internal quotation marks omitted).
2. Additional Background
Before trial the government submitted a notice of its intent to offer as evidence the pornographic anime files found on Mr. Morrow's devices. The government contended that the anime was admissible as res gestae[3] or under Rule 404(b) as evidence that Mr. Morrow intended to engage in the charged crimes, that he knew the relevant search terms, and that it was no mistake or accident that depictions of real child abuse were also found on his devices. Mr. Morrow opposed admission of the evidence, contending that it was not res gestae and that the government's allegedly proper Rule 404(b)(2) purposes were a veneer obscuring its true intent: "to convince the jury that if [Mr.] Morrow possessed child erotica that depicts the animated sexual abuse of children, then it is more likely that he would possess child pornography." R., Vol. I at 84 (internal quotation marks omitted). The district court did not rule on the matter before trial and the parties renewed these arguments at the outset of trial. The district court determined that the evidence was not res gestae and might not be admissible under Rule 404(b); it said that it would wait to see if Mr. Morrow asserted
a defense that the government might rebut through proper use of the evidence under Rule 404(b).
Mr. Morrow took the stand as the first and only witness for the defense. Direct examination was very brief. He merely denied downloading or distributing child pornography, though he admitted having seen it accidentally. On cross-examination he said that no one else...
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