Filed: Dec. 13, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 12-13-2006 USA v. George Precedential or Non-Precedential: Non-Precedential Docket No. 05-3000 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. George" (2006). 2006 Decisions. Paper 104. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/104 This decision is brought to you for free and open access by the Opinions of the United State
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 12-13-2006 USA v. George Precedential or Non-Precedential: Non-Precedential Docket No. 05-3000 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. George" (2006). 2006 Decisions. Paper 104. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/104 This decision is brought to you for free and open access by the Opinions of the United States..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
12-13-2006
USA v. George
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3000
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. George" (2006). 2006 Decisions. Paper 104.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/104
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-3000
____________
UNITED STATES OF AMERICA
v.
ALVIN W. GEORGE, JR.,
Appellant
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 03-cr-00299)
District Judge: Honorable James F. McClure, Jr.
____________
Submitted Under Third Circuit LAR 34.1(a)
December 11, 2006
Before: FISHER and CHAGARES, Circuit Judges,
and BUCKWALTER,* District Judge.
(Filed December 13, 2006)
____________
OPINION OF THE COURT
____________
*
The Honorable Ronald L. Buckwalter, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
FISHER, Circuit Judge.
Alvin George, Jr. was charged by a superceding indictment with five counts of
sexual exploitation of a minor, in violation of 18 U.S.C. § 2252(a). Following a four-day
jury trial, George was convicted on all five counts of the indictment. After the District
Court denied his motion for a new trial, he was sentenced to 60 months in prison. He
now appeals his conviction. We have jurisdiction pursuant to 28 U.S.C. § 1291. For the
reasons below, we will affirm his conviction.
I.
As we write only for the parties, who are familiar with the factual context and the
procedural history of the case, we will set forth only those facts necessary to our analysis.
In July 2003, authorities were alerted by Yahoo!, an internet service provider, that an
individual using the screen name “tinylittlepus” was downloading child pornography. A
follow-up investigation revealed that the account owner was listed as a “Ms. Al George,”
who resided in Lock Haven, Pennsylvania, and was born on July 21, 1977, the same place
of residence and date of birth as the defendant. After obtaining a search warrant for the
George residence, federal investigators searched the house and discovered a computer
containing images of child pornography. George was arrested and charged for possessing
the illegal images.1
1
George does not contend on appeal that the images did not constitute child
pornography. He only contests whether he was the person who downloaded them.
2
Evidence at trial indicated that George lived at the address in Lock Haven during
the time the pornography was downloaded and shared the household with only one other
adult, Brenda Smartwood. In addition, George’s teenaged cousin, Nicole Vincent, had
lived at George’s house for part of the summer of 2003. Vincent testified that she and her
friends used the computer, but she did not download or access child pornography nor did
her friends download it in her presence. Smartwood likewise testified that she never
downloaded child pornography.
Evidence at trial also indicated that George utilized a Yahoo! account,
“alvingeorge1,” for regular email activity. After midnight on September 25, 2003, shortly
before several pornographic images were downloaded, George updated the profile of his
Yahoo! account registered under alvingeorge1. Further, emails were received by
tinylittlepus@yahoo.com from an e-mail address registered to Alvin George,
alving@adelphia.net. Three days before the emails were sent, George used the Adelphia
email account to seek work doing odd jobs from another individual.
At trial, George testified that he knew little about computers, that Smartwood used
the computer more often, and that she often organized his email for him. Additionally, he
claimed that he had an alibi for some of the times at which child pornography was
downloaded to his computer. To support that contention, he introduced into evidence
yellow pay-stubs that included the words “Alvin’s hrs.” or “Alvin” at the top. Each
receipt contained the days and hours George allegedly worked for John Cebulka, who
owned and operated an asphalt paving operation. George admitted that he was the person
3
who filled out the days and times on each receipt. When he testified, Cebulka supported
George’s contention that George had worked for him, but indicated that George only
worked for him a few times during 2003 and did not work for him the number of hours he
claimed. Cebulka also testified that he had never used pay stubs like the ones George had
produced, nor was the handwriting on those stubs his.
George also claimed that on a day that an image was downloaded he was in court
for a contempt proceeding. However, evidence indicated that, while he was in court at
3:25, he lived close enough to the courthouse to have walked home and used his computer
at 3:47, the time at which the image was downloaded.
At the beginning of George’s trial testimony, his attorney attempted to bolster
George’s claim that he did not know the password to the “tinylittlepus” account by
introducing a handwritten note George had left on the computer in February of 2003. The
note was addressed to “Nicki and Friends,” and requested that they take cups and dishes
down with them after using the computer and put his screen name and password back into
Yahoo! when they were done as he had struggled to sign on to his account after one of
them had used his computer. The government objected to the evidence as self-serving,
inadmissible hearsay. Defense counsel responded by telling the District Court that the
note was the original, but never asserted a non-hearsay purpose for the note. The District
Court sustained the objection and excluded the evidence.
At the close of evidence, the prosecutor began his closing statement by defining
voyeur and indicating that George was a voyeur; he then indicated that George’s motive
4
for downloading the images was sexual gratification. Shortly thereafter, the prosecutor
indicated that this was “an excellent investigation,” “one of the finest investigations in a
case like this that I have seen.” There was no objection. The prosecutor then stated that
Agent Kyle, one of the federal investigators, “did an incredible job in this case.” At this
point, George’s attorney objected. The District Court sustained the objection and directed
the prosecutor to refrain from any other personal evaluations of the agents’ work or
testimony. The District Court instructed the jury that the prosecutor’s opinions were not
to be considered when weighing the evidence. George’s counsel requested no further
relief.
Later in his closing remarks, the prosecutor told the jury that the images presented
at trial were only a representative sample of what was found on George’s computer.
George’s counsel objected on the ground that the government’s statement was based on
facts not in evidence. The District Court overruled the objection, finding that there was
testimony that more photos were uncovered than those presented at trial and that the
photographs presented at trial were a mere sample. After defense counsel stated in his
closing that the prosecution had chosen to show the worst photographs, the prosecutor
stated during his rebuttal that what the jury was shown were not the worst photos. The
District Court sustained the defense’s objection and stated the jury was to decide the case
only on the evidence before it.
The prosecutor also stated that he “felt sorry” for George’s father and stated that a
defense witness who had testified to George’s character was a “sweet,” “entertaining
5
lady,” and that he wouldn’t have expected anything else out of her but to say that she
knew nothing bad about George. George’s counsel objected. The District Court
sustained the objection and again instructed the jury not to take into consideration the
prosecutor’s personal opinions about the evidence presented. George’s counsel requested
no further relief.
II.
George raises four points of error on appeal. George first contends that there was
insufficient evidence on which a jury could have found that he was the person who
downloaded the pornographic images. “We apply a particularly deferential standard of
review when deciding whether a jury verdict rests on legally sufficient evidence.” United
States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998). In conducting such a review, we must
view the evidence in the light most favorable to the government and uphold a jury’s
verdict if any rational juror could have found the elements of the crime beyond a
reasonable doubt. Id.; United States v. McBane,
433 F.3d 344, 348 (3d Cir. 2005).
George contends both that he had an alibi at the time several of the images were
downloaded and that, even if he did not have an alibi, because the computer was in a
common area of his home, the government failed to prove beyond a reasonable doubt that
he was the person who downloaded the images. As to George’s first contention, while
the jury could have chosen to believe his alibis, they were not required to do so. The
government presented witnesses that contradicted George’s testimony as to his
whereabouts. George’s employer testified that the time sheets George presented at trial
6
were not written or signed by him and that George worked considerably fewer hours than
he claimed during his testimony. The government also presented evidence that rebuffed
George’s contention that he was at a contempt hearing when one of the images was
downloaded. Based on this evidence, a reasonable juror could have chosen to disbelieve
George’s alibis. It is the jury’s duty to weigh the evidence and judge the credibility of the
witnesses presented to it. A jury is free to believe or disbelieve the testimony of any
witness that appears at trial. United States v. Boone, 279 F.3d 163, 189 (3d Cir. 2002).
When reviewing credibility determinations by the jury, we must be careful not to usurp its
role. United States v. Flores,
454 F.3d 149, 154 (3d Cir. 2006). Therefore where, as
here, there is substantial evidence upon which a jury could base its conclusion, we will
not disturb that determination. United States v. Iafelice,
978 F.2d 92, 94 (3d Cir. 1992).
George’s second contention, that because there were other people in the home the
government could not prove he was the person who downloaded the images, is equally
without merit. At trial, the government produced evidence that showed George had
updated his regular user profile shortly before several pornographic images were
downloaded, and that the user profile for “tinylittlepus” included the name “Ms. Al
George” and George’s birthday. In addition, the government produced testimony
indicating that at the time several of the images were downloaded, George was the only
person home. Finally, both Smartwood and Vincent testified that they had not
downloaded any pornographic images. From this evidence, the jury was able to draw the
reasonable inference that George was the person downloading the images onto his
7
computer. United States v. Knox, 32 F.3d 733, 753 (3d Cir. 1994) (“A trier of fact,
however, may consider direct and circumstantial evidence and the reasonable inferences
to be drawn therefrom.”).
III.
George next contends that the District Court erred in failing to admit the note he
addressed to Vincent and her friends. At trial, the government objected to the note as
hearsay. Defense counsel responded that the note was “the original.” George now
contends that the note was offered for non-hearsay purpose. As the proponent of the
evidence, George’s counsel bore the burden of proving that the evidence was offered for a
non-hearsay purpose. See Lippay v. Christos, 996 F.2d 1490, 1497 (3d Cir. 1993)
(holding that proponent of hearsay bears the burden of proving why it is admissible).
Because George’s counsel did not satisfy this burden and, in fact, did not even suggest
that the evidence would be used for non-hearsay purposes, the District Court did not
abuse its discretion in excluding the evidence. In re Flat Glass Antitrust Litigation,
385
F.3d 350, 372 (3d Cir. 2004) (we review district court’s decision to admit or exclude
based on hearsay for abuse of discretion).
Even if George’s counsel had appropriately responded to the government’s
objection, the District Court did not abuse its discretion in excluding the evidence. The
inference George wanted to draw from the note, that he did not know the password, was
dependent upon the truth of the statement in the note that he had struggled to get back
online after Vincent or her friends had removed his password. The note was offered for
8
the truth of statements it contained and, therefore, was classic hearsay. See Mahone v.
Lehman, 347 F.3d 1170, 1173 (9th Cir. 2003).
III.
George also appeals several statements made by the prosecutor during closing
arguments, including that the investigation was well conducted, that the agent in charge
of the investigation had done a very good job, that the prosecution had not shown the
“worst of the worst” of the pornographic images, and that a defense witness would say
nothing other than that George was a good man. In essence, George contends that the
prosecutor vouched for his own witnesses while attacking the credibility of one of
George’s character witnesses and referred to facts not in evidence.
George is requesting a new trial on appeal; however, it is important to note that
George’s counsel did not move for a mistrial at any point during closing arguments.
While we generally review a district court’s refusal to grant a mistrial for abuse of
discretion, in this particular circumstance there was no ruling on a mistrial because
defense counsel did not request one. While no other court of appeals appears to have
addressed this precise issue, in other contexts where defense counsel objects but fails to
request a mistrial, we review failure to grant a mistrial for plain error only. See United
States v. Richards, 241 F.3d 335, 341 (3d Cir. 2001) (where defendant objected to Jenks
Act violation but did not request mistrial we review for plain error). However, even if we
were to review for abuse of discretion, our conclusion would be the same.
9
In order for a district court to grant a mistrial for improper vouching by the
prosecution, two criteria must be met. First, the prosecutor must vouch for the credibility
of a government witness, and, second, the assurance must be based on the prosecutor’s
personal knowledge or other facts not in evidence. United States v. Saada, 212 F.3d 210,
225 (3d Cir. 1998). If we find an error, that error is then subject to the harmless error test:
if it is highly probable that the error did not contribute to the judgment, the district court
will be affirmed. United States v. Zehrback,
47 F.3d 1252, 1265 (3d Cir. 1993)
(prosecutor’s statements regarding witness credibility are non-constitutional errors subject
to the highly probable standard); United States v. Gambone,
314 F.3d 163, 177 (3d Cir.
2003). When determining whether a prosecutor’s improper remarks in closing constitute
harmless error we consider “the comments within the context of the entire trial, the effect
of any curative instruction given, and the strength of the evidence against the defendant.”
Id. at 179.
While the prosecutor’s statements about the work of the agents and the quality of
the investigation constitute vouching, the error caused by such statements was harmless.
As an initial matter, both the prosecutor and the District Court offered curative
statements. Following the prosecutor’s statements, the prosecutor himself told the jury
that they were not to consider his opinions. In addition, the District Court instructed the
jury that “what [the prosecutor] might have expected or not is not material and it’s how
you would determine the facts based on the evidence presented to you, Members of the
Jury.” In addition, viewing the comments in the context of the entire trial suggests that
10
they were harmless. Because the credibility of the agents who conducted the
investigation was not at issue, the prosecutor’s statements about the quality of that
investigation could not have greatly swayed a jury that had already been presented with
substantial evidence of George’s involvement in downloading the pornography. The
same is true of the prosecution’s statements about the credibility of the defense’s witness.
As was the case in Zehrbach:
Immediately after the objection, the court gave a specific instruction to
disregard the prosecutor's comment, an instruction that the court repeated
just a short time later at the close of the prosecutor's argument. As a general
matter, the court told the jurors to disregard any personal opinion of counsel
and to base their decision solely on the evidence. And, in its final
instructions, the court cautioned the jury members that the arguments of
counsel are not evidence; that they must not be persuaded by bias,
prejudice, or sympathy; and that they must not consider any evidence that
they were earlier instructed to disregard. We believe that this extensive
cautioning by the court was sufficient to cure the prosecutor's error.
Zehrbach, 47 F.3d at 1267.
George next contends the prosecutor’s statement regarding what photographs were
shown during trial was error. During closing statements, George’s counsel suggested that
the government had only shown a sample of the images collected and that it had chosen to
show the worst examples. On rebuttal, the prosecutor stated that it was not the “worst of
the worst.” After George’s counsel objected, the District Court stated that “the jury has
got to decide this case on what was shown and what they saw.” Again, based on the
11
substantial evidence presented against George, the curative instruction and the statement
in the context of the entire case, the error was harmless.2
The other comments George raises on appeal were equally harmless.
IV.
George’s final contention regarding the scope of cross-examination was not
preserved for appeal and does not meet our plain error review of such issues.
For the reasons set forth above, we will affirm George’s conviction.
2
In its brief, the government suggests that the “invited error” doctrine should
apply. The doctrine “teaches that where a prosecutorial argument has been made in
reasonable response to improper attacks by defense counsel, the unfair prejudice flowing
from the two arguments may balance each other out, thus obviating the need for a new
trial.” United States v. Gambone, 314 F.3d 163, 179 n.11 (3d Cir. 2003) (quoting United
States v. Pungitore,
910 F.2d 1084, 1126 (3d Cir. 1990)). The doctrine does not apply
where defense counsel’s attacks were “proper, ‘vigorous advocacy.’”
Id. (quoting United
States v. Molina-Guevara,
96 F.3d 698, 705 (3d Cir. 1996)). We need not address
whether that doctrine would apply to this case because, even if there was error, it was
harmless.
12
