United States v. Roy

• Decision Date: 26 April 2017
• Docket Number: No. 12-15093,12-15093
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Alexander Michael ROY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

855 F.3d 1133

UNITED STATES of America, Plaintiff–Appellee,

v.Alexander Michael ROY, Defendant–Appellant.

No. 12-15093

United States Court of Appeals, Eleventh Circuit.

April 26, 2017

Jonathan Colan, James Vincent Hayes, Anne Ruth Schultz, Wifredo A. Ferrer, Kathleen Mary Salyer, U.S. Attorney's Office, Miami, FL, Carmen M. Lineberger, U.S. Attorney's Office, Fort Pierce, FL, for Plaintiff–Appellee.

Paul Michael Rashkind, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, Miami, FL, for Defendant–Appellant.

Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.

ED CARNES, Chief Judge:

Because it is a document designed to govern imperfect people, the Constitution does not demand perfect trials and errors do not necessarily require the reversal of a conviction. More than thirty years ago, the Supreme Court reminded us: "As we have stressed on more than one occasion, the Constitution entitles a criminal defendant to a fair trial, not a perfect one." Delaware v. Van Arsdall , 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). Alexander Roy, who was convicted in federal court of five sex-related crimes involving minors, received a fair trial although not a perfect one.

The error in Roy's trial occurred when his counsel returned a few minutes late from a lunch break on the third day of the six-day trial. He missed only a small part of the testimony of the 12th of 13 government witnesses. Counsel was out of the courtroom for only seven minutes of a trial that lasted 1,884 minutes or 31.4 hours (not counting recesses and jury deliberations). That is less than one-half of one percent of the trial time. During his absence counsel missed only 18 answers out of a total of approximately 2,745 answers that were given by government witnesses during the trial. That is less than one percent of the total testimony against Roy. And the little testimony that counsel had missed was repeated in even more detail by the same witness after counsel returned to the courtroom.

The parties agree that it was Sixth Amendment error for inculpatory testimony to be taken in the absence of defense counsel. Their primary disagreement is about whether it was a type of structural error for which prejudice is presumed, or trial error to which the harmless error rule applies. They also disagree about whether our review is limited to plain error and about whether the error was actually harmless.

I. The Charged Crimes

Roy was charged in a five-count indictment with sex crimes related to minor girls. Count 1 charged him with attempted child enticement in violation of 18 U.S.C. § 2422(b), based on his efforts to arrange a sexual encounter with someone he believed to be a 13-year-old girl in response to an internet ad posted by law enforcement. That charge did not involve any child pornography. And no questions about the Count 1 charge were asked during counsel's brief absence. None.

Counts 2–5 did involve child pornography. Each of those four counts charged Roy with knowingly possessing "any visual depiction" of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2) (emphasis added). The difference between those four counts is based on the four different electronic devices Roy used to store his images of child pornography: his desktop computer (Count 2); his laptop computer (Count 3); his USB thumb drive (Count 4); and three of his CD-ROM discs (Count 5). All that the government had to prove under each of Counts 2–5 was that Roy knowingly possessed one or more images of child pornography on the electronic device specified in that count. It could be the same image or images on each device or different images, so long as there was at least one on each device. As we will discuss in more detail in the next part, the evidence proved without dispute that there were multiple still images and video images of child pornography involving a number of different minors on each of Roy's four electronic devices. Roy had a sexual relationship with one of the minors, and he had produced the pornographic still and video images of that child, some of which were contained on all four devices. Each of the four devices also contained other child pornography, involving different minors, that Roy had downloaded from the internet.

II. The Evidence

For analytical ease we break the testimony and evidence presented during the trial down into three categories: that presented before counsel's brief absence from the trial, that presented during his absence, and that presented after he returned.

A. Before Counsel's Absence

During the first two days of Roy's six-day trial, with defense counsel present at all times, the government called 10 witnesses whose testimony focused on the attempted child enticement charge in Count 1. Their unrefuted testimony showed that Roy, a middle school teacher, set up a sexual encounter that he thought would involve a 13-year-old girl and her mother, and he drove to a pre-arranged location to meet the mother and child so that he could have sex with the child. Their testimony also showed that he went to the illicit rendezvous with condoms and a bottle of Astroglide lubricant in his pockets. Roy's lawyer was in the courtroom for the entirety of those first two days of trial and for the presentation of all of the testimony and evidence about the crime that was charged in Count 1. He did not miss any of it on any day. On the third day of trial, before the lunch break and in counsel's presence, there was additional testimony about Count 1, including the fact that Roy had traveled more than an hour to get to the meeting place for the purpose of having sex with a 13-year-old girl.

Much of the testimony on that third morning, however, went to Counts 2–5 and concerned Roy's sexual relationship with L.B., the girl in the pornographic images and videos that Roy himself had produced and stored, along with child pornography from the internet, on his four electronic devices specified in those four counts. That same morning, with defense counsel present, William Kulp, an agent of the Florida Department of Law Enforcement, testified without objection that L.B. was born on May 9, 1989. That means any pornography of her that was produced before May 9, 2007 is child pornography. See 18 U.S.C. § 2256(1) (defining "minor" for this purpose as anyone under 18 years of age). The principal at the high school L.B. had attended identified photos of her in various school yearbooks, three of which were admitted into evidence without objection. The principal's testimony and those yearbook exhibits enabled the jury to compare how L.B. looked at various ages during her school years with how she looked in the pornography that Roy had produced.

The third and final government witness to be called before the lunch break on the third day was Deputy Sheriff Charlie Longson, a computer forensics expert. In defense counsel's presence, he testified extensively about his qualifications and how he examines a computer. He also testified about the user and email/messenger accounts that he had found on Roy's desktop computer. That testimony was used, among other things, to put into evidence Roy's email messages setting up his sexual liaison with the (fictitious) 13-year-old and the sexually oriented instant messenger conversations between Roy and (the real) L.B. that were on his computer. Longson's testimony was interrupted by a lunch break.

B. During Counsel's Absence

Defense counsel returned late from the lunch break on the third day of trial and missed seven minutes of Deputy Longson's continuing testimony. During the seven minutes counsel was out of the courtroom, Longson gave 18 answers to the AUSA's questions. All of those 18 answers concerned only six of the numerous images of child pornography, and all six of those images were of a single female subject. Those particular images of the young female were found in only one of the several file folders containing child pornography that were on Roy's desktop computer. That folder, when discovered by Longson on Roy's desktop computer had been labeled "2006-03-11." On that date, L.B. indisputably would have been 16 years old.

Longson testified that those six images showed "a nude white female ... bound to a table by her feet with rope" and with "an orange cloth ... secured around her neck with silver duct tape." He also testified that the six images were taken with a Kodak v530 Zoom Digital Camera on March 10, 2005, were initially uploaded onto a computer on March 11, 2006, and were then transferred to Roy's desktop computer on April 4, 2009. During the seven minutes while defense counsel was out of the courtroom, no exhibits were admitted into evidence and Longson did not identify L.B. as the female in the six pornographic images.

C. After Counsel Returned

Soon after counsel returned to the courtroom, the testimony that Longson had given during counsel's brief absence was repeated.¹ And it was only after counsel returned that Longson identified L.B. as the young female in the six images of pornography found on the desktop computer that he had been testifying about.

This is how those events unfolded. After defense counsel entered the courtroom, the prosecutor asked the court for permission to speak with him, which the court granted. There was then a pause in the proceedings, and after the prosecutor and defense counsel had an opportunity to speak, the prosecutor approached witness Longson with 10 exhibits: the six pornographic images of L.B. that Longson had found in the "2006-03-11" folder on Roy's desktop computer; three other pornographic images of L.B. from a different folder on that computer, which was titled "2006-12-04";² and a "contact sheet" generated by the camera showing still images from a pornographic video of L.B., also recovered from that second folder. See also infra n.3.

With counsel present Longson then...