Filed: Apr. 25, 2013
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4918 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES JOHNSON, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (8:11-cr-00552-AW-1) Submitted: April 17, 2013 Decided: April 25, 2013 Before WILKINSON, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Matthew G. Kaiser, Rebecca S. LeGr
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4918 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES JOHNSON, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (8:11-cr-00552-AW-1) Submitted: April 17, 2013 Decided: April 25, 2013 Before WILKINSON, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Matthew G. Kaiser, Rebecca S. LeGra..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4918
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:11-cr-00552-AW-1)
Submitted: April 17, 2013 Decided: April 25, 2013
Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew G. Kaiser, Rebecca S. LeGrand, Rachel A. Browder, THE
KAISER LAW FIRM PLLC, Washington, D.C., for Appellant. Rod J.
Rosenstein, United States Attorney, LisaMarie Freitas, Special
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Johnson appeals his convictions and subsequent
ninety-six-month sentence for receipt of child pornography, in
violation of 18 U.S.C.A. § 2252A(a)(2) (West Supp. 2012), and
for possession of child pornography, in violation of 18 U.S.C.A.
§ 2252A(a)(5)(B) (West Supp. 2012). Johnson raises four issues
on appeal, claiming (1) that the district court erred in denying
his motion to suppress his inculpatory statements because he was
in custody when he made them and had not previously been warned
of his rights; (2) that the district court improperly denied him
his right to testify on his own behalf by barring him from
testifying that he sought out online child pornography for the
purpose of researching a book; (3) that the jury was improperly
instructed that merely viewing illicit materials online would
support a conviction for receiving them; and (4) that the
district court inadequately explained its chosen sentence.
Concluding that any error committed by the district court was,
at worst, harmless, we affirm.
Johnson first claims that the district court erred in
declining to suppress the statements he made to law enforcement
officers when he was interviewed in his bedroom while his house
was being searched pursuant to a warrant. The district court’s
legal conclusions underlying a suppression determination are
reviewed de novo, while its factual findings are reviewed for
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clear error. United States v. Guijon-Ortiz, 660 F.3d 757, 762
(4th Cir. 2011). Because the district court denied the motion
to suppress, the evidence is construed on appeal in the light
most favorable to the government. United States v. Perkins,
363
F.3d 317, 320 (4th Cir. 2004).
Although Johnson contends that he was “in custody” for
purposes of Miranda v. Arizona, 384 U.S. 436 (1966), we
disagree. Given that Johnson was informed that he was free to
leave, that he was interviewed in his own bedroom, that the door
to his bedroom was left open throughout the interview, and that
the two agents interviewing him never handcuffed him or
brandished weapons, we conclude that, on the totality of the
circumstances, a reasonable person in Johnson’s position would
have believed that he was at liberty to leave. United States v.
Hargrove,
625 F.3d 170, 178 (4th Cir. 2010); United States v.
Colonna,
511 F.3d 431, 435 (4th Cir. 2007). See United
States v. Uzenski,
434 F.3d 690, 705 (4th Cir. 2006); United
States v. Parker,
262 F.3d 415, 419 (4th Cir. 2001). We
therefore reject Johnson’s argument that the district court
improperly denied his motion to suppress.
Second, Johnson claims that the district court denied
him his constitutional right to testify in his own defense by
barring him, under our decision in United States v. Matthews,
209 F.3d 338, 345-50 (4th Cir. 2000), from testifying that he
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viewed child pornography only in the course of conducting
research for a book he was writing. But even if we accept
Johnson’s constitutional characterization of this argument, but
see United States v. Malloy, 568 F.3d 166, 177 (4th Cir. 2009),
we cannot agree with him that exclusion of this evidence was so
“arbitrary” or “disproportionate” that it deprived him of a
right secured to him under the Constitution. United States v.
Woods,
710 F.3d 195, 200 (4th Cir. 2013). It was clearly within
the court’s prerogative to bar Johnson’s proferred testimony to
the extent it was offered to support a free-standing defense
under the First Amendment.
Matthews, 209 F.3d at 344. Accord
Boland v. Holder,
682 F.3d 531, 536 (6th Cir. 2012); United
States v. Holm,
326 F.3d 872, 874-75 (7th Cir. 2003).
To the extent that Johnson’s testimony could tend to
refute the Government’s case that he “knowingly” downloaded the
illicit materials that he viewed online, see § 2252A(a)(2), the
asserted purpose motivating Johnson’s online conduct is only
marginally relevant to the issue of scienter. And the district
court explicitly informed Johnson that he was free to testify
about matters much more salient to such a defense, leaving him
ample opportunity to testify, for example, that he was unaware
of computer technology to such a degree that he had no idea that
the images he viewed online would be downloaded to his
computer’s hard drive. Johnson declined to do so.
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Thus, even if the district court’s ruling was
overbroad, its overbreadth was minimal and deprived Johnson only
of evidence that was “marginally relevant” to his defense rather
than “important” to it. Holmes v. South Carolina, 547 U.S. 319,
325, 326 (2006); United States v. Stever,
603 F.3d 747, 755 (9th
Cir. 2010). Because Johnson’s proposed testimony was not vital
to the exercise of his constitutional right to testify on his
own behalf, we reject his claim that the district court’s
conduct rendered that right meaningless.
Johnson next challenges the district court’s decision
to instruct the jury that, for purposes of receipt of child
pornography under 18 U.S.C.A. § 2252A(a)(2), “[r]eceiving
includes viewing an image online regardless of whether the image
is downloaded.” This court reviews for abuse of discretion a
district court’s refusal to give a jury instruction, but reviews
de novo a claim that a jury instruction contained an incorrect
statement of the law. United States v. Mouzone, 687 F.3d 207,
217 (4th Cir. 2012), cert. denied,
133 S. Ct. 899 (2013).
We agree with Johnson that the jury instruction was
erroneous inasmuch as it relied upon a single sentence in
United States v. Roszczipka, 473 F. App’x 211 (4th Cir. 2012)
(per curiam), without proper attention to its context. See id.
at 212 (“A defendant may ‘receive’ child pornography by viewing
it online, regardless of whether he downloads the material.”).
5
The quoted language in Roszczipka speaks to § 2252A(a)(2)’s mens
rea requirement, not to the proper definition of “receipt.” See
United States v. Osborne, 935 F.2d 32, 34 n.2 (4th Cir. 1991)
(observing that a defendant had received child pornography where
he “achieved the power to exercise dominion and control” over
it). Roszczipka observes only that a defendant may “knowingly”
receive child pornography by viewing it online with the
knowledge that it will be saved — perhaps temporarily — to his
computer’s hard drive, even if he does not actively or
purposefully download it.
In ignoring this distinction, the instructions as they
were phrased in this particular case improperly defined
“receipt,” ultimately informing the jury that Johnson could be
convicted as long as he knowingly viewed illicit materials
online, even if he did not knowingly receive them. The
instructions thereby eliminated the requirement under
§ 2252A(a)(2) that the Government prove, circumstantially or
otherwise, that Johnson knew that the images he viewed online
would be saved to his computer or otherwise come into his
possession. See United States v. Ramos, 685 F.3d 120, 131 (2d
Cir.), cert. denied,
133 S. Ct. 567 (2012) (collecting cases);
United States v. Winkler,
639 F.3d 692, 696-99 (5th Cir. 2011)
(same). This was error.
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Nevertheless, we conclude that the flawed instruction
amounts only to harmless error on the circumstances of this
case. See Neder v. United States, 527 U.S. 1, 17-19 (1999);
United States v. Hornsby,
666 F.3d 296, 305 (4th Cir. 2012).
Axiomatically, whether a defendant knew that images viewed
online would be saved to his computer is a close question only
where there is some indication that the images were saved there
without his knowledge. If, for example, the evidence shows only
that the images were saved to the computer’s cache or temporary
internet folders and that the defendant made no effort to remove
them, or that the images were otherwise saved automatically to
locations inaccessible to a computer user, there may be some
reason to believe that the defendant did not “knowingly” receive
the images. See, e.g.,
Ramos, 685 F.3d at 132;
Winkler, 639
F.3d at 698; United States v. Pruitt,
638 F.3d 763, 766 (11th
Cir. 2011); United States v. Flyer,
633 F.3d 911, 919 (9th Cir.
2011); United States v. Dobbs,
629 F.3d 1199, 1201 (10th Cir.
2011); United States v. Bass,
411 F.3d 1198, 1205 (10th Cir.
2005).
Here, by contrast, the issue of Johnson’s knowledge
was not a close call. Not only did he admit to law enforcement
officials that he “actively download[ed]” child pornography for
the purpose of his sexual gratification, but the Government also
introduced evidence of the multiple sequential steps that were
7
required for Johnson to access the files forming the basis of
his receipt charge, including downloading a file decompression
program, downloading an .RAR file containing numerous compressed
files, entering a password to open the .RAR file, and clicking
“extract” in order to decompress the individual files and access
them. As for circumstantial evidence of Johnson’s knowledge,
the jury heard evidence that he had repeatedly sought and viewed
child pornography online and had even created a Microsoft Word
document into which he copied and pasted child pornography
images that he had previously downloaded. See Ramos, 685 F.3d
at 132;
Winkler, 639 F.3d at 699;
Pruitt, 638 F.3d at 767.
We are fully cognizant of the limited scope of our
inquiry in this respect: that we do not “become in effect a
second jury to determine whether the defendant is guilty,” but
instead merely determine “whether the record contains evidence
that could rationally lead to a contrary finding with respect to
the omitted element.” Neder, 527 U.S. at 19. Yet in this case
the evidence can only be described as one-sided, given Johnson’s
admissions, the demonstrated “pattern of child pornography and
receipt,” and the inability of Johnson’s cross-examination of
Government witnesses to put the issue of his intent seriously in
dispute.
Winkler, 639 F.3d at 699. We are therefore convinced
beyond a reasonable doubt that, even if it had been properly
instructed, the jury would still have concluded that “this is
8
not the exceptional case in which the government has persisted
in bringing a criminal prosecution against the unknowing victim
of a computer’s inner workings,” and would not have reached an
opposite conclusion as to Johnson’s guilt on the receipt count.
Id. To the extent that Johnson argues that the impact of the
improper jury instruction was exacerbated by his failure to
testify on his own behalf, we observe that the district court
did not prevent Johnson from testifying about the issues most
salient to his proposed defense on the elements. As a result,
while Johnson’s decision not to testify may have had some
adverse effect on the strength of his rebuttal to the
Government’s case, any such effect was not occasioned by the
district court but was instead self-inflicted.
Finally, Johnson attacks his downward variant sentence
as procedurally unreasonable. He contends that the district
court’s explanation of its chosen sentence insufficiently
considered his arguments that Johnson posed no social harm and
had amassed a good record of service to the community, and that
the court should have disregarded U.S. Sentencing Guidelines
Manual (“USSG”) § 2G2.2 as unfairly imposing outsized
enhancements for relatively trivial specific offense
characteristics. We have reviewed the record and conclude that,
although the district court “might have said more” to explain
its rejection of the various arguments that Johnson had raised
9
before it, Rita v. United States, 551 U.S. 338, 359 (2007), its
explanation was elaborate enough “to allow [this court] to
effectively review the reasonableness of the sentence.” United
States v. Montes-Pineda,
445 F.3d 375, 380 (4th Cir. 2006)
(internal quotation marks omitted). We therefore reject
Johnson’s challenge to his sentence.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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