US v. Charles Johnson, No. 12-4918 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4918 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES JOHNSON, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 district a conviction court for receiving inadequately them; explained and its (4) chosen that the 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. legal conclusions underlying a The district court s suppression determination are reviewed de novo, while its factual findings are reviewed for 2 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 disagree. of Miranda v. Arizona, 384 U.S. 436 (1966), we 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. therefore Parker, reject 262 F.3d Johnson s 415, 419 argument (4th that Cir. the 2001). district We 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 3 viewed child pornography only in the course research for a book he was writing. of conducting 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 right secured to him under the Constitution. Woods, 710 F.3d 195, 200 (4th Cir. 2013). him of a United States v. 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 marginally relevant to the issue of scienter. conduct is only 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 computer s hard drive. online would be downloaded Johnson declined to do so. 4 to his 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 online, as even instructions § 2252A(a)(2) long if as he he did thereby that the knowingly not viewed knowingly eliminated the Government prove, illicit receive materials them. requirement The under circumstantially or otherwise, that Johnson knew that the images he viewed online would be saved possession. to his computer or otherwise come into his 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. 6 Nevertheless, we conclude that the flawed instruction amounts case. only to harmless error on the circumstances of this 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 images that he had previously downloaded. child pornography 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. while Johnson s adverse not on effect decision strength the to testify of may his As a result, have had rebuttal to some 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. court s explanation of He contends that the district 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 Manual should have ( USSG ) enhancements § 2G2.2 for characteristics. disregarded U.S. Sentencing Guidelines as unfairly imposing outsized relatively trivial specific offense 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] effectively review the reasonableness of the sentence. States v. (internal Montes-Pineda, quotation 445 marks F.3d 375, omitted). 380 We (4th United Cir. therefore to 2006) reject Johnson s challenge to his sentence. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 10
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