US v. Derek Gavegnano, No. 07-4579 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4579 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DEREK F. GAVEGNANO, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, District Judge. (3:05-cr-00017-nkm) Submitted: October 28, 2008 Decided: January 16, 2009 Before MOTZ, TRAXLER, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY, Charlottesville, Virginia, for Appellant. Julia C. Dudley, Acting United States Attorney, Jean B. Hudson, Assistant United States Attorney, Charlottesville, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Derek counts of F. receipt Gavegnano of child appeals his pornography, conviction in on violation two of 18 U.S.C. §§ 2252(a)(2), 3261(a) (2006); one count of possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(4), 3261(a) (2006); and one count of importation or transportation of obscene matters, in violation of 18 U.S.C. §§ 1462, 3261(a) (2006). We have reviewed the record and find no reversible error. Gavegnano first claims the district court erred in denying his motion to suppress based on violation of his Fourth and Fifth obtained Amendment from a rights when evidence laptop. government-issued against We him review was legal conclusions underlying the denial of a motion to suppress de novo, and review factual findings for clear error. United States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006). The evidence the is Government. construed in the light most favorable to United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998). To rights, establish Gavegnano must a violation establish of that his he Fourth had expectation of privacy in the computer searched. a Amendment legitimate United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000) (citing Rakas v. Illinois, 439 U.S. 128, 143 (1978)). 2 To prove a legitimate expectation of privacy, Gavegnano must show that his subjective expectation of privacy is one that society is prepared to accept as objectively reasonable. Simons, 206 F.3d at 398. As the district court properly held, this he did not do. It is uncontroverted that when Gavegnano was issued a government computer, the user agreement he signed stated that he was aware of the acceptable use of all government-issued information systems, that he consented to the monitoring of the information systems, and included the statement that he understood that monitoring was not selective and would include all activities on the information system. agreement form Gavegnano signed applied Moreover, the user to his use of all computer systems owned by the governmental agency for which he worked, which included the laptop he used in Qatar, on which the pornographic images were found. On these facts, and construing the evidence in favor of the Government, see Seidman, 156 F.3d at 547, we find no clear error by the district court in its determination that Gavegnano had no reasonable expectation of privacy in the unauthorized use of his government-issued laptop computer such that his Fourth Amendment rights were violated. Gavegnano s Fifth Amendment claim, based on the fact that, after invoking his right to consult with an attorney, he was asked for, and revealed, the password to the computer, also fails. Any self-incriminating 3 testimony that he may have provided by conclusion revealing was a See Stone, 976 F.2d independently foregone Gavegnano was the sole user and possessor of the computer. v. Government already that States the password proved United because the 909, 911 (4th Cir. 1992) (quoting Fisher v. United States, 425 U.S. 391, 411 (1976)). Next, Gavegnano challenges the district court s taking of judicial notice of the court s jurisdiction insofar as its failure to instruct the jury that it was not required to accept as conclusive any fact judicially noticed, as required by Fed. R. Evid. 201(g). Specifically, he takes issue with the district court s judicial notice that Gavegnano was charged with crimes punishable by over a year in prison. Rule 201(a) limits the scope of Rule 201 to judicial notice of adjudicative, not legislative, facts. Evid. 201(a) advisory committee notes. See Fed. R. Here, the fact of which the district court took judicial notice, i.e., the penalty for the crimes with which Gavegnano was charged, is fixed, does not change from case to case, and applies to all cases in which those crimes were charged. adjudicative fact. Hence, it is a legislative, not an See, e.g., United States v. Williams, 442 F.3d 1259, 1261 (10th Cir. 2006) (citations omitted) ( statutes are considered courts to Accordingly, legislative take the facts judicial district of notice court 4 was which is under the authority of unquestionable. ). no obligation to follow the jury instruction requirement set out in Rule 201(g), and it committed no reversible error in its failure to instruct the jury pursuant to Rule 201(g). In a related claim, Gavegnano also challenges the district court s taking of judicial notice of the element that the crimes with which he was charged were punishable by more than one year in prison if committed in the United States, an element required under 18 U.S.C. § 3261, claiming that the court s action precluded him from requiring that the Government prove each reasonable Virginia element doubt. state law of He the charges supports his statutes against argument regarding carry sentences of less than a year. him by obscene beyond a reference to material that He also asserts that one of the charges carried a penalty of zero to five years. His argument is without merit. First, as discussed above, the district court properly may and such legislative facts include the interpretation of statutes. Fed. R. take Evid. judicial 201(a) notice advisory of legislative comm. facts, notes. Moreover, the requirements of Rule 201(b) state that a judicially noticed fact must be one that is either (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort accuracy cannot reasonably be questioned. 5 to sources whose Here, the length of punishment is determined simply by reading the text of the statutes violated, each of which provide that violation of the statute is punishable by more than one year in prison. * Second, Gavegnano s reliance on the fact that certain Virginia state statutes provide for punishment of less than a year for the receipt and possession of obscene material is misplaced, as Gavegnano was not charged under Virginia law, but rather under federal statutes for offenses that took place in Qatar. As it is undisputed that, on their face, the federal statutes under which Gavegnano was charged carried sentences of more than one year, the length of the relevant penalties cannot reasonably be questioned. Hence, the fact of that penalty properly was found by judicial notice. Likewise without merit is Gavegnano s contention that judicial notice was not proper because one carried a penalty of zero to five years. of the charges As the crimes all were punishable by imprisonment for a term exceeding one year, the actual prison sentence imposed * is not relevant to the Counts One through Six of which Gavegnano was charged alleged a violation of 18 U.S.C. § 2252(a)(2), requiring a punishment of five to twenty years in prison. See 18 U.S.C. § 2252(b)(1) (2006). Count Seven, alleging a violation of 18 U.S.C. § 2252(a)(4), is punishable by up to ten years in prison. See § 2252(b)(2) (2006). Count Eight, alleging a violation of 18 U.S.C. § 1462 (2006), is punishable by up to five years in prison. 6 determination proper. of whether judicial notice in this case was See e.g., United States v. Jones, 195 F.3d 205, 207 (4th Cir. 1999). Gavegnano s judicial notice the additional district assertion, court that erroneously by taking precluded him from requiring the Government to meet its burden of proof for the element of § 3251 requiring the alleged crimes to carry a prison sentence of over a year, is without merit. of the penalty properly was a judicially As the length noticed fact, the Government was without obligation to prove that element, and we find no error. Gavegnano s final claim on appeal is that the district court erred in admitting the forensic report which detailed the contents of the computer containing child pornography. His objection is based on his contention that the chain of custody for the computer had not been adequately established because other individuals handled the computer after it was taken away from him, such that tampering could have occurred. Pursuant to Fed. R. Evid. 901(a), a party introducing evidence is required to authenticate it with evidence sufficient to support a finding that the matter in question is what its proponent claims. The proper inquiry relating to chain of custody is whether the authentication testimony was sufficient to convince the court that it is improbable that the 7 original item had tampered with. 366 (4th Cir. been exchanged with another or otherwise United States v. Howard-Arias, 679 F.2d 363, 1982) (citation omitted). Chain of custody precision is not an iron-clad requirement and a missing link does not prevent the admission of real evidence, so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspect. (internal quotation marks and citation omitted). Id. Once evidence is established that the item is what it is purported to be any [r]esolution of whether evidence is authentic calls for a factual determination by the jury. . . . United States v. Branch, 970 F.2d 1368, 1370 (4th Cir. 1992). It is the jury s job to evaluate any defects in the chain of custody and accept or disregard evidence. United States v. Clonts, 966 F.2d 1366, 1368 (10th Cir. 1992). The decision to admit evidence at trial is within the sound discretion of the district court and we review for abuse of discretion. United States v. Jones, 356 F.3d 529, 535 (4th Cir. 2004). Here, the Government satisfied its Rule 901(a) burden. Evidence was information presented introduced found that on matched that the forensic Gavegnano s the report computer. serial number for contained Evidence the was computer subject to the forensic report with the computer and hard drive issued to Gavegnano. Gavegnano 8 admitted that the computer placed into evidence, which was the same computer from which the files listed in the forensic report were taken, was the same one taken from him in Qatar. The Government introduced testimony by the man who saw pornography on Gavegnano s computer before it was taken by the Government. There was no evidence or indication of any tampering with the computer between the time it was taken from Gavegnano and the time the forensic report was compiled. That others looked at or used Gavegnano s computer during the time it was in custody, and the possibility that they may have tampered with the computer, was an issue for the jury See Branch, 970 F.2d at 1370. to consider. We find no abuse of the district court s discretion when it found the Government had established a sufficient chain of custody and admitted the conviction and forensic report. Accordingly, sentence. legal before affirm Gavegnano s We dispense with oral argument because the facts and contentions the we court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 9
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