US v. Matthew Russo, No. 09-5231 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5231 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MATTHEW JAMES RUSSO, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:09-cr-00191-REP-1) Submitted: December 30, 2010 Before AGEE and Circuit Judge. WYNN, Circuit Decided: Judges, and January 21, 2011 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Carolyn V. Grady, Assistant Federal Public Defender, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Samuel E. Fishel, Special Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Matthew Russo appeals his conviction for knowingly attempting to receive material containing child pornography, in violation of contends 18 that U.S.C. the § 2252A(a)(2)(B). evidence was On insufficient appeal, to Russo support his conviction and that the district court constructively amended the indictment by allowing the Government to broaden the bases for conviction beyond those contained in the indictment. We affirm. Russo sufficient material to first support containing questions his child whether conviction of pornography. the evidence attempt In to was receive particular, Russo argues that the Government failed to demonstrate that he took a substantial step necessary to commit the offense. The standard of review in criminal cases where the district court sits in judgment without a jury is well-settled. We review findings on factual issues other than the ultimate issue of guilt using the clearly erroneous test. On the ultimate issue of guilt, we review the district court s finding to determine if it is supported by substantial evidence. United States v. Lockhart, 382 F.3d 447, 451 (4th Cir. 2004). In determining whether the evidence in the record is substantial, this Court views the evidence in the light most favorable to the evidence that a Government, reasonable and finder inquires of fact whether there is could accept as adequate and sufficient to establish a defendant s guilt beyond 2 a reasonable doubt. United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). In order to prove the charged offense, the Government needed to attempted establish to beyond knowingly a reasonable receive material See 18 U.S.C. § 2252A(a)(2)(B). pornography. doubt that Russo containing child In order to prove an attempt, the Government must demonstrate that (1) the defendant had the requisite intent to commit a crime; (2) the defendant undertook a direct act in a course of conduct planned to culminate in his commission of the crime; (3) the act was substantial, in that it was strongly corroborative of the defendant's criminal purpose; and (4) the act fell short of the commission of the intended crime due to intervening circumstances. United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003). After reviewing the record, we conclude that the evidence is sufficient to sustain Russo s conviction. Next, Russo contends that the district court constructively amended the indictment by allowing the Government to broaden the bases for conviction beyond those charged in the indictment. Specifically, Russo argues the material containing child pornography language of § 2252A(a)(2)(B) put Russo on notice that the subject of the offense was his alleged attempted access to Illegal.CP. Thus, Russo contends that when the Government submitted evidence of pornographic images found in the cache and unallocated space of his computer, this broadened 3 the bases for conviction, thereby resulting in constructive amendment of the indictment. A constructive amendment to an indictment occurs when either the government (usually during its presentation of evidence and/or its argument), the court, (usually through its instructions to the jury), or both, broadens the possible bases for conviction beyond those presented by the grand jury. United States v. Floresca, 38 F.3d 706, 710 (4th Cir. 1994). constructive indictment charged, is such amendment altered is that a fatal change the elements of the defendant is actually convicted to variance crime other than that charged in the indictment. v. Randall, 171 F.3d 195, 203 (4th quotation marks and citation omitted). Cir. because the A the offense of a United States 1999) (internal A constructive amendment is error per se, and, given the Fifth Amendment right to be indicted by a grand jury, must be corrected on appeal, even when not preserved by objection. Floresca, 38 F.3d at 714. When considering a constructive amendment claim, the key inquiry is whether the defendant has been tried on charges other than those made in the indictment. Id. After reviewing the record, we conclude that the Government did not constructively amend the indictment. Accordingly, we affirm the judgment of the district court. We dispense with oral argument because the facts and 4 legal before contentions the court are adequately and argument expressed would not in aid the the materials decisional process. AFFIRMED 5
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