United States v. Rusnak

• Decision Date: 25 November 2020
• Docket Number: No. 17-10137,17-10137
• Citation: 981 F.3d 697
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bryan RUSNAK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

981 F.3d 697

UNITED STATES of America, Plaintiff-Appellee,

v.Bryan RUSNAK, Defendant-Appellant.

No. 17-10137

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 11, 2020 Pasadena, California

Filed November 25, 2020

Molly A. Karlin (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Tucson, Arizona; for Defendant-Appellant.

Shelley K.G. Clemens (argued), Assistant United States Attorney; Robert L. Miskell, Appellate Chief; Michael Bailey, United States Attorney; United States Attorney's Office, Tucson, Arizona; for Plaintiff-Appellee.

Before: Marsha S. Berzon, Ryan D. Nelson, and Kenneth K. Lee, Circuit Judges.

R. NELSON, Circuit Judge:

Bryan Rusnak appeals his conviction and sentence for accessing, possessing, and distributing child pornography. We affirm Rusnak's criminal conviction, vacate some of the challenged Conditions of Supervised Release, and remand for further proceedings.

I

On May 10, 2014, FBI Agent Jimmie Daniels received eight images depicting child pornography from an unknown individual using a peer-to-peer file sharing website. Subscriber information from CenturyLink tied the unknown individual's IP address to Rusnak's home in Vail, Arizona. Nearly five months later FBI Agent Eric Campbell applied for a warrant to search Rusnak's home for evidence of child pornography. In his affidavit, Agent Campbell stated offenders "[o]ften maintain their collections ... for several years" and keep the collections "close by, usually at the individual's residence, to enable the collector to view the collection, which is valued highly." He also stated that electronic files "can be recovered months or even years after they have been downloaded ... using readily-available forensics tools."

FBI Agents executed the search warrant at Rusnak's home on October 2, 2014, seizing, among other things, two laptops and a desktop computer. A forensic search of the seized computers found child pornography and search terms associated with child pornography, and one of Rusnak's laptops had on it CCleaner—a downloadable software program used to delete information from computers—and PeerBlock—a downloadable software program that provides "additional firewall ... to keep people out of your computer."

Rusnak was indicted on four counts: two counts of knowing access with intent to view child pornography, one count of possession of child pornography, and one count of distribution of child pornography. He pled not guilty to each count.

Rusnak moved to suppress the evidence seized from his home. He argued the warrant to search his home lacked sufficient probable cause because Agent Campbell's warrant affidavit relied on stale evidence. The magistrate judge recommended denying Rusnak's motion to suppress, reasoning that the five-month delay between the day Agent Daniels received the child pornography and execution of the warrant "did not render th[e] evidence [relied on in the warrant affidavit] stale." According to the magistrate judge, despite the delay, it was likely at the time the warrant was issued that evidence of child pornography "would still be found" in Rusnak's home. The district court adopted the report and denied the motion.

Before trial, the Government and Rusnak entered an agreement (the "Agreement") to disclose to each other before trial "[a] list of all potential witnesses for the party's case in chief and a summary of their expected testimony if a report or statement covering the expected testimony ha[d] not already been provided." The Government filed a witness list that included Rusnak's wife, Stephanie, as a potential witness. Rusnak did not file a witness list and stated he was the only potential witness for his case in chief.

Rusnak asserted during his opening statement at trial that the evidence would show that a visitor to his home—later identified as his friend, Steve Chamberlain—accessed, possessed, and distributed the child pornography without Rusnak's knowledge. The Government objected to Rusnak's opening, arguing it was "being sandbagged" because Rusnak had failed to disclose the identity of the alternate culprit. Rusnak reiterated he did not have witnesses and that information about third-party culprits would only come in if Rusnak testified or the Government solicited that testimony from Stephanie. The district court did not rule on the Government's objection.

Rusnak's appeal focuses on three portions of the trial: (1) the testimony of Agent Campbell; (2) the testimony of Rusnak's wife, Stephanie; and (3) the Government's summation. We describe those parts of the trial below.

Agent Campbell's Testimony

Agent Campbell, whose affidavit secured the search warrant for Rusnak's home, testified on the second and third days of trial. He asserted that CCleaner was discovered on Rusnak's laptop and "can be used to wipe ... computers ... mak[ing] it extremely difficult or impossible to find" the images of child pornography. He acknowledged that the Government "can't recover things that have been cleaned up, typically" but stated "[w]e kind of get lucky sometimes with the forensic review."

Agent Campbell also testified that he had observed a change in the characteristics of younger child pornography collectors versus older collectors:

The change is we refer to them as download and deleters [sic ]. We are seeing a lot more of that now. Especially as Internet speeds get faster, as our defendants or the subjects of our investigations get younger and more familiar with technology, they are less likely to hold on to large collections. It may be stereotypical, but typically older individuals who live by themselves, they maintain those very large collections over years and years. What I'm seeing, though, are younger and younger people using these more high-speed technologies, they don't do that. They delete their stuff. They clean up after themselves, and they know they can go back and get it again.

Finally, Agent Campbell described the process used by child pornography collectors to find and download child pornography using peer-to-peer websites:

It's not a quick process. I mean, you've got to find it, so you search, and fortunately I guess child pornography is not that easy to find on the Internet. If you're looking for child pornography specifically, it's going to take longer....

Once you find it, the torrent downloads itself just to give the instructions to uTorrent as to how to get those files. That part downloads pretty quick, but the lengthy process is getting that payload. Typically, uTorrent is used to get big files, and although it is a more efficient way to share files on the Internet, it's still not quick, especially if it's content that's not out there a lot, such as child pornography, a brand-new movie, or a brand-new TV show. Usually those things, they could be hours. If it's something that's really big and really rare, you could leave it running for days. Some people do that.

Stephanie Rusnak's Testimony

After the government rested its case without calling Stephanie, Rusnak attempted to call Stephanie as his first witness. Rusnak had not listed Stephanie as a witness or provided a summary of her expected testimony, as required by the Agreement. The Government moved to preclude Stephanie from testifying about any subject not disclosed during her FBI interviews, including whether other individuals could have been responsible for accessing, downloading, and distributing the child pornography. Rusnak offered that he would not ask Stephanie "about other people in the house," so long as the Government did not argue during "closing that there was no corroboration for what Mr. Rusnak is going to say, because [Stephanie] would just corroborate what [Mr. Rusnak is] going to say, that there were a lot of people at the house."

The Government agreed to this arrangement, and the district court incorporated the arrangement in its subsequent ruling that "Ms. Rusnak [will] be precluded from testifying as to any subject matter that was not previously disclosed, and in this case it sounds as if the only disclosure that occurred was as part of the 302s and the interviews that were done of Ms. Rusnak."¹

Stephanie testified that the only residents in the home were herself, her mother, Rusnak, and their two daughters. During cross-examination, the Government asked Stephanie:

Q. When you talked to the [FBI] agents in October of ’14 and then again in March of ‘16, you told them you didn't know of anyone who could have downloaded child pornography at the house, correct?

A. Right.

Q. And you told them that no one else stayed at the house?

A. I might have said that. I don't recall.

At the end of this exchange, Rusnak objected that the questions left a false impression with the jury that no visitors came to the house. The district court overruled Rusnak's objection, stating:

I think you can follow up and ask her what she meant by stay at the house, but I don't think it's a backdoor way to get into people visited [sic ] the house. And I think actually, in the common sense of the jurors, that "somebody doesn't stay at the house" doesn't mean that there aren't other people at the house.

So I think you can clarify what she meant when she said that, but I don't think you can go into who else had access to the computers, as in who was using the computers, to the extent that it's outside the scope of the interview.

Stephanie then clarified on redirect that when she "told the FBI [she] didn't know anybody else who was staying at the house" she meant "[n]obody else lived at the house."

The Government's Summation

During its summation, the Government focused on discrediting Rusnak's theory that Chamberlain or another visitor to the house was responsible for accessing, possessing, and distributing the child pornography. It argued "[y]ou ... heard from ... [Rusnak's] wife, and what she told law enforcement on multiple occasions is that she didn't know how child pornography could...