United States v. Donnie Barnes, Sr.
20-30059
9th Cir.Oct 22, 2021Background
- Donnie Barnes, Sr. convicted by jury of production, distribution, and possession of child pornography; he appealed.
- Jury Instruction 19 told jurors to consider the six Dost factors when determining whether images showed a "lascivious exhibition of the genitals or pubic area." Barnes sought an additional theory-of-defense instruction, which the district court refused.
- Barnes also challenged prosecutor remarks in closing and rebuttal (characterizing evidence as "compelling" and "overwhelming") as improper vouching.
- Law enforcement obtained subscriber information for the relevant IP address via a Comcast summons and executed a search warrant of Barnes’s home and person; Barnes moved to suppress that evidence.
- The district court denied Barnes’s suppression motion; on appeal the Ninth Circuit affirmed, rejecting Barnes’s Fourth Amendment and instructional/vouching claims.
Issues
| Issue | Barnes' Argument | Government's Argument | Held |
|---|---|---|---|
| Jury instructions: use of Dost factors and refusal to give Barnes’ proposed theory-of-defense instruction | Dost factors misapplied; requested theory-of-defense instruction needed | Dost factors are proper guidance; proposed instruction unnecessary to explain legal effect | Affirmed: Instruction 19 properly used Dost factors; proposed instruction not required |
| Prosecutorial vouching in closing/rebuttal | Prosecutor vouched and improperly vouched evidence was "compelling/overwhelming" | Statements were rhetorical emphasis and responded to defense; jury instructed on burden | Affirmed: comments were permissible rhetorical advocacy, not reversible vouching |
| Suppression — Comcast summons for subscriber/IP information | Fourth Amendment required a warrant to obtain subscriber info tied to IP address | Forrester/Smith treat IP/subscriber records as not protected; summons lawful or suppression inappropriate | Affirmed: no Fourth Amendment violation as to IP/subscriber info; Carpenter does not clearly overrule Forrester |
| Suppression — timing/execution of search warrant | Execution timing violated Rule 41 or required suppression | Magistrate authorized execution "at any time" for good cause under Rule 41 | Affirmed: warrant execution complied with Rule 41; no suppression warranted |
Key Cases Cited
- United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (sets six-factor test for "lascivious" in child-pornography analysis)
- United States v. Weigand, 812 F.2d 1239 (9th Cir. 1987) (affirming use of Dost factors)
- United States v. Overton, 573 F.3d 679 (9th Cir. 2009) (Dost factors and photographer’s perspective relevant in production cases)
- United States v. Renzi, 769 F.3d 731 (9th Cir. 2014) (standard for reviewing jury instructions)
- United States v. Kaplan, 836 F.3d 1199 (9th Cir. 2016) (judge not required to give unnecessary defense instructions)
- United States v. Williams, 989 F.2d 1061 (9th Cir. 1993) (distinguishing rhetorical argument from improper vouching)
- United States v. Forrester, 512 F.3d 510 (9th Cir. 2008) (no reasonable expectation of privacy in IP address/subscriber records)
- Smith v. Maryland, 442 U.S. 735 (1979) (pen register/context for third-party records and privacy expectations)
- Carpenter v. United States, 138 S. Ct. 2206 (2018) (narrow Supreme Court decision on cell-site location info; did not overrule Smith)
- United States v. Stefanson, 648 F.2d 1231 (9th Cir. 1981) (search-warrant execution/timing principles)