United States v. Vallejos

• Decision Date: 10 February 2014
• Docket Number: No. 13–10025.,13–10025.
• Citation: 742 F.3d 902
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Eric Paul VALLEJOS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

742 F.3d 902

UNITED STATES of America, Plaintiff–Appellee,

v.Eric Paul VALLEJOS, Defendant–Appellant.

No. 13–10025.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Dec. 2, 2013.

Filed Feb. 10, 2014.

Ann H. McGlenon (argued), Assistant Federal Defender, Fresno, CA, for Defendant–Appellant.

David L. Gappa (argued) and Megan A.S. Richards, Assistant United States Attorneys; Benjamin B. Wagner, United States Attorney, Fresno, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Eastern District of California, Lawrence J. O'Neill, District Judge, Presiding. D.C. No. 1:11–cr–00171–LJO–1.

Before: MICHAEL DALY HAWKINS, RONALD M. GOULD, and RICHARD A. PAEZ, Circuit Judges.

OPINION

GOULD, Circuit Judge:

Defendant–Appellant Eric Paul Vallejos (“Vallejos”) appeals his conviction and sentence under 18 U.S.C. § 2252(a)(2) for receipt of material involving the sexual exploitation of minors. Specifically, Vallejos appeals the district court's decision to deny his requests that (1) his unedited confession be shown to the jury under the Rule of Completeness, Fed.R.Evid. 106, and (2) the jury be instructed on the lesser-included charge of possession of child pornography. He also appeals the district court's application of a sentencing enhancement for distribution. SeeU.S. Sentencing Guidelines Manual § 2G2.2(b)(3)(F). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

On September 16, 2010, police detective Arthur Hively (“Detective Hively”) used a computer program to discover that Vallejos was making available on a peer-to-peer file-sharing network dozens of files whose names “were consistent with child pornography.” Detective Hively downloaded three of these files and confirmed that they were pornographic images of children.

Three weeks later, police officers executing a search warrant discovered dozens of child pornography images and videos, and a peer-to-peer file sharing program called LimeWire, on Vallejos's computer.¹ During a forensic examination of Vallejos's computer, Detective Hively found some of the images he had downloaded as part of his initial investigation the previous month. After the search, Vallejos admitted to officers that “he was responsible for the child pornography that was on the computer,” and he voluntarily gave the police an audio- and video-recorded statement to that effect. The district court played an edited version of this statement at trial. After a two-day trial, a jury found Vallejos guilty of receipt of material involving the sexual exploitation of minors, in violation of 18 U.S.C. § 2252(a)(2).

The pre-sentence report recommended a sentence of 235 months, based on an offense level of 35, a criminal history category of IV, and a Sentencing Guidelines range of 235 months to 293 months. At issue here is a two-level enhancement for “distribution” under U.S.S.G. § 2G2.2(b)(3)(F) in light of Vallejos's use of a peer-to-peer file sharing network.² The district court adopted the pre-sentence report's calculations, considered the 18 U.S.C. § 3553 factors, and sentenced Vallejos to 188 months imprisonment—nearly 50 months shy of the low end of the Guidelines range—and 180 months of supervised release.

I

We review the district court's decision on the Rule of Completeness for an abuse of discretion. See United States v. Collicott, 92 F.3d 973, 983 (9th Cir.1996). We review de novo whether possession is a lesser-included offense of receipt, but we review for an abuse of discretion the district court's decision not to instruct the jury on possession. See United States v. Rivera–Alonzo, 584 F.3d 829, 832 (9th Cir.2009). We review the district court's interpretation of the Sentencing Guidelines de novo, its application of the Guidelines to the facts of the case for an abuse of discretion, and its factual findings for clear error. See United States v. Jennings, 711 F.3d 1144, 1146 (9th Cir.2013).

II

Federal Rule of Evidence 106 codified the common law Rule of Completeness, which exists to avert “misunderstanding or distortion” caused by introduction of only part of a document. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988); see alsoFed.R.Evid. 106 (“If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.”). The Rule does not, however, require the introduction of any unedited writing or statement merely because an adverse party has introduced an edited version. Rather, “it is often perfectly proper to admit segments of prior testimony without including everything, and adverse parties are not entitled to offer additional segments just because they are there and the proponent has not offered them.” Collicott, 92 F.3d at 983 (internal quotation marks omitted). In other words, if the “complete statement [does] not serve to correct a misleading impression” in the edited statement that is created by taking something out of context, the Rule of Completeness will not be applied to admit the full statement. Id.; see also United States v. Dorrell, 758 F.2d 427, 434–35 (9th Cir.1985) (finding no Rule of Completeness violation where the edited version of a confession did not “distort[ ] the meaning of the statement” (internal quotation marks omitted)).

Vallejos contends that the redacted version of his confession misled the jury because it left out parts concerning, among other things, his prior prison sentence, his drug history, and his church. This argument misunderstands the Rule's purpose. The district court properly concluded that the Rule of Completeness is not so broad as to require the admission of all redacted portions of a statement, without regard to content. See Collicott, 92 F.3d at 983. The district court explained that “[j]ust because somebody is putting in part of a transcript ... does not mean for the sake of completeness, everything comes in,” and it properly rejected Vallejos's argument that the redacted portions should be admitted to show the jury the “flavor of the interview,” to “humanize” Vallejos, to prove his “character,” and to convey to the jury the voluntariness of the statement. The district court did not abuse its discretion when it determined that—while this evidence might be relevant to “sympathy” and sentencing—the redacted statement was not misleading and therefore that the Rule of Completeness did not require admission of the full statement into evidence. See id.

III

The district court also did not abuse its discretion when it declined to instruct the jury on possession. Possession of child pornography under 18 U.S.C. § 2252(a)(4) is a lesser-included offense of receipt of child pornography under 18 U.S.C. § 2252(a)(2). See, e.g., United States v. Schales, 546 F.3d 965, 977 (9th Cir.2008); United States v. Davenport, 519 F.3d 940, 945 (9th Cir.2008). But a defendant who is charged with receipt of child pornography is entitled to an instruction on possession only “if the evidence would permit a jury rationally to find him guilty of [possession] and acquit him of [receipt].” Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973); see also United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir.2007) (quoting Keeble ).

Vallejos admitted at trial that he “received many images of child pornography” and that he viewed both photos and videos on his computer. Nonetheless, he asked the court to instruct the jury that it could find him guilty of possession of child pornography if it did not find him guilty of receipt beyond a reasonable doubt. The district court properly denied Vallejos's request, noting that it was “undisputed” that Vallejos “received” child pornography. Receipt of child pornography requires the same elements as possession, with an additional element of “knowing acceptance or taking.” Davenport, 519 F.3d at 943. There was clear and undisputed evidence that Vallejos knew he was downloading child pornography—indeed, there were multiple admissions from him to that effect. We conclude that no rational jury could have found Vallejos guilty of possession but acquitted him of receipt.

IV

We turn now to Vallejos's final argument that, under the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), his distribution enhancement was unconstitutional because a defendant may be sentenced only upon the elements of an offense to which he has pleaded guilty or which were proven at trial. Vallejos argues that because “he had no intent to distribute” child pornography, the district court should have calculated his sentence using an offense level consistent with receipt, rather than one consistent with receipt plus an enhancement for distribution.³

“Any fact ... necessary to support a sentence exceeding the maximum authorized by the facts ... must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). However, “[w]hen a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.” Id. at 233, 125 S.Ct. 738. And if a particular fact is not an “element or ingredient of the charged offense,” it need not be found by a jury beyond a reasonable doubt. Alleyne v. United States, –––U.S. ––––, 133 S.Ct. 2151, 2158, 186 L.Ed.2d 314 (2013) (internal quotation marks omitted).

Vallejos misunderstands the law. The distribution enhancement affected neither the statutory maximum sentence nor any mandatory minimum sentence; thus, neither Apprendi nor Alleyne v. United States is implicated. See id. at 2163 (holdingthat judicial factfinding in imposing a...